Exhibit 4.1
Pooling and Servicing Agreement
See attached
================================================================================
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
Depositor
CAPMARK FINANCE, INC.,
a Master Servicer
WACHOVIA BANK, NATIONAL ASSOCIATION
a Master Servicer
X.X. XXXXXX COMPANY, INC.,
Special Servicer
and
LASALLE BANK NATIONAL ASSOCIATION,
Trustee and Paying Agent
------------------------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2006
------------------------------------------------
CD 2006-CD3
Commercial Mortgage Pass-Through Certificates
================================================================================
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.....................................................
Section 1.02 Certain Calculations..............................................
Section 1.03 Certain Constructions.............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans; Assignment of
Mortgage Loan Purchase Agreements................................
Section 2.02 Acceptance by Custodian and the Trustee...........................
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Repurchase and Substitution of Mortgage
Loans............................................................
Section 2.04 Representations, Warranties and Covenants of the
General Master Servicer, Master Servicer No. 2,
Special Servicer and Trustee.....................................
Section 2.05 Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests.....................................
Section 2.06 Miscellaneous REMIC and Grantor Trust Provisions..................
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
Section 3.01 The Master Servicer to Act as Master Servicer;
Special Servicer to Act as Special Servicer;
Administration of the Mortgage Loans and the
Serviced Companion Loans.........................................
Section 3.02 Liability of the Master Servicer..................................
Section 3.03 Collection of Mortgage Loan and Serviced Companion
Loan Payments....................................................
Section 3.04 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts..................................................
Section 3.05 Collection Account; Excess Liquidation Proceeds
Account; Distribution Accounts; Interest Reserve
Account and Serviced Whole Loan Collection Accounts..............
Section 3.06 Permitted Withdrawals from the Collection Account,
the Distribution Accounts and the Serviced Whole
Loan Collection Accounts; Trust Ledger...........................
Section 3.07 Investment of Funds in the Collection Account , the
Serviced Whole Loan Collection Accounts, REO
Account, the Lock-Box Accounts, the Cash
Collateral Accounts and the Reserve Accounts.....................
Section 3.08 Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage..................................
Section 3.09 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions................................
Section 3.10 Appraisals; Realization Upon Defaulted Mortgage
Loans............................................................
Section 3.11 Trustee to Cooperate; Release of Mortgage Files...................
Section 3.12 Servicing Fees, Trustee Fees and Special Servicing
Compensation.....................................................
Section 3.13 Reports to the Trustee; Collection Account
Statements.......................................................
Section 3.14 [Reserved]........................................................
Section 3.15 [Reserved]........................................................
Section 3.16 Access to Certain Documentation...................................
Section 3.17 Title and Management of REO Properties and REO
Accounts.........................................................
Section 3.18 Sale of Specially Serviced Loans and REO Properties...............
Section 3.19 Additional Obligations of The Master Servicer and
Special Servicer; Inspections....................................
Section 3.20 Authenticating Agent..............................................
Section 3.21 Appointment of Custodians.........................................
Section 3.22 [Reserved]........................................................
Section 3.23 Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts....................................
Section 3.24 Property Advances.................................................
Section 3.25 Appointment of Special Servicer...................................
Section 3.26 Transfer of Servicing Between the Master Servicer
and the Special Servicer; Record Keeping; Asset
Status Report....................................................
Section 3.27 [Reserved]........................................................
Section 3.28 Limitations on and Authorizations of the Master
Servicer and Special Servicer with Respect to
Certain Mortgage Loans...........................................
Section 3.29 Certain Rights and Obligations of the Special
Servicer.........................................................
Section 3.30 Modification, Waiver, Amendment and Consents......................
Section 3.31 Rights of Holders of the Serviced Whole Loans.....................
Section 3.32 Certain Intercreditor Matters Relating to the Whole
Loans............................................................
Section 3.33 [Reserved]........................................................
Section 3.34 Rights of Holders of the Spectrum Centre Whole Loan...............
Section 3.35 Litigation Control................................................
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.....................................................
Section 4.02 Statements to Certificateholders; Reports by
Trustee; Other Information Available to the
Holders and Others...............................................
Section 4.03 Compliance with Withholding Requirements..........................
Section 4.04 REMIC Compliance..................................................
Section 4.05 Imposition of Tax on the Trust Fund...............................
Section 4.06 Remittances.......................................................
Section 4.07 P&I Advances......................................................
Section 4.08 Grantor Trust Reporting...........................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates..................................................
Section 5.02 Registration, Transfer and Exchange of Certificates...............
Section 5.03 Mutilated, Destroyed, Lost or Stolen Certificates.................
Section 5.04 Appointment of Paying Agent.......................................
Section 5.05 Access to Certificateholders' Names and Addresses.................
Section 5.06 Actions of Certificateholders.....................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Master Servicer and
the Special Servicer.............................................
Section 6.02 Merger or Consolidation of either Master Servicer.................
Section 6.03 Limitation on Liability of the Depositor, the
Master Servicer and Others.......................................
Section 6.04 Limitation on Resignation of either Master Servicer
and the Special Servicer; Termination of either
Master Servicer and the Special Servicer.........................
Section 6.05 Rights of the Depositor and the Trustee in Respect
of the Master Servicer and the Special Servicer..................
Section 6.06 The Master Servicer or Special Servicer as Owners
of a Certificate.................................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.................................................
Section 7.02 Trustee to Act; Appointment of Successor..........................
Section 7.03 Notification to Certificateholders and Other Persons..............
Section 7.04 Other Remedies of Trustee.........................................
Section 7.05 Waiver of Past Events of Default; Termination.....................
Section 7.06 Trustee as Maker of Advances......................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.................................................
Section 8.02 Certain Matters Affecting the Trustee.............................
Section 8.03 Trustee Not Liable for Certificates or Mortgage
Loans............................................................
Section 8.04 Trustee May Own Certificates......................................
Section 8.05 Payment of Trustee's Fees and Expenses;
Indemnification..................................................
Section 8.06 Eligibility Requirements for Trustee..............................
Section 8.07 Resignation and Removal of the Trustee............................
Section 8.08 Successor Trustee.................................................
Section 8.09 Merger or Consolidation of Trustee................................
Section 8.10 Appointment of Co-Trustee or Separate Trustee.....................
ARTICLE IX
TERMINATION
Section 9.01 Termination.......................................................
ARTICLE X
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 10.01 Intent of the Parties; Reasonableness.............................
Section 10.02 [Reserved]........................................................
Section 10.03 Information to be Provided by the Master Servicer
and the Special Servicer.........................................
Section 10.04 Information to be Provided by the Trustee.........................
Section 10.05 Filing Obligations................................................
Section 10.06 Form 10-D Filings.................................................
Section 10.07 Form 10-K Filings.................................................
Section 10.08 Xxxxxxxx-Xxxxx Certification......................................
Section 10.09 Form 8-K Filings..................................................
Section 10.10 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports...............................
Section 10.11 Annual Compliance Statements......................................
Section 10.12 Annual Reports on Assessment of Compliance with
Servicing Criteria...............................................
Section 10.13 Annual Independent Public Accountants' Servicing
Report...........................................................
Section 10.14 Exchange Act Reporting Indemnification............................
Section 10.15 Amendments........................................................
Section 10.16 Exchange Act Report Signatures; Delivery of
Notices; Interpretation of Grace Periods.........................
Section 10.17 Termination of the Trustee........................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Counterparts......................................................
Section 11.02 Limitation on Rights of Certificateholders........................
Section 11.03 Governing Law.....................................................
Section 11.04 Notices...........................................................
Section 11.05 Severability of Provisions........................................
Section 11.06 Notice to the Depositor and Each Rating Agency....................
Section 11.07 Amendment.........................................................
Section 11.08 Confirmation of Intent............................................
Section 11.09 No Intended Third-Party Beneficiaries.............................
Section 11.10 [Reserved]........................................................
Section 11.11 Entire Agreement..................................................
Section 11.12 Third Party Beneficiaries.........................................
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1 and Class A-1D Certificates
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 Form of Class A-3 Certificate
Exhibit A-4 Form of Class A-AB Certificate
Exhibit A-5 Form of Class A-4 Certificate
Exhibit A-6 Form of Class A-5 Certificate
Exhibit A-7 Form of Class A-1A Certificate
Exhibit A-8 Form of Class A-S Certificate
Exhibit A-9 Form of Class XS and Class XP 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 O Certificate
Exhibit A-25 Form of Class P Certificate
Exhibit A-26 Form of Class Q Certificate
Exhibit A-27 Form of Class S Certificate
Exhibit A-28 Form of Class T Certificate
Exhibit A-29 Form of Class R Certificate
Exhibit A-30 Form of Class LR Certificate
Exhibit B-1 Mortgage Loan Schedule
Exhibit B-2 Servicing Fee Rate Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Securities Legend
Exhibit G Form of Regulation S Transfer Certificate
Exhibit H Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global Certificate
during the Restricted Period
Exhibit I Form of Transfer Certificate for Exchange or Transfer from
Rule 144A Global Certificate to Regulation S Global Certificate
after the Restricted Period
Exhibit J Form of Transfer Certificate for Exchange or Transfer from
Regulation S Global Certificate to Rule 144A Global Certificate
Exhibit K Form of Distribution Date Statement
Exhibit L Form of Investor Certification
Exhibit M Form of Sub-Servicer Backup Certification
Exhibit N Form of Purchase Option Notice
Exhibit O Form of Trustee Backup Certification
Exhibit P Form of Servicer Backup Certification
Exhibit Q Form of Special Servicer Backup Certification
Exhibit R Form of Notification from Custodian
Exhibit S Form of Closing Date Trustee Certification
Exhibit T Form of Notice to the Trustee and S&P from the Master Servicer
Regarding Defeasance of a Mortgage Loan
Exhibit U Information Request Form
Exhibit V Additional Disclosure Notification
Exhibit W Loan Seller Sub-Servicers
Exhibit X Loans with earnout/holdback provisions
Exhibit Y Form of Depositor Certification
Exhibit Z Serviced Companion Loan Noteholder Register
TABLE OF SCHEDULES
Schedule I Class A-AB Planned Principal Balance Schedule
Schedule II Servicing Criteria to be Addressed in Assessment of Compliance
Schedule III Additional Form 10-D Disclosure
Schedule IV Additional Form 10-K Disclosure
Schedule V Form 8-K Disclosure Information
Schedule VI Class XP Reference Rates
Pooling and Servicing Agreement, dated as of October 1, 2006, among
Deutsche Mortgage & Asset Receiving Corporation, as Depositor, Capmark Finance
Inc., as master servicer (with respect to all the Mortgage Loans other than the
Ala Moana Portfolio Mortgage Loan and the Fair Lakes Office Portfolio Mortgage
Loan) (the "General Master Servicer"), Wachovia Bank, National Association (with
respect to the Ala Moana Portfolio Mortgage Loan and the Fair Lakes Office
Portfolio Mortgage Loan) (the "Master Servicer No. 2" and together with the
General Master Servicer, the Master Servicer"), X.X. Xxxxxx Company, Inc., as
special servicer (the "Special Servicer") and LaSalle Bank National Association,
as Trustee and Paying Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary Statement shall
have the meanings specified in Article I hereof)
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple Classes which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund consisting primarily of the
Mortgage Loans.
The Lower-Tier REMIC will hold the Mortgage Loans (exclusive of any
Excess Interest) and certain other related assets subject to this Agreement, and
will issue the Lower-Tier Regular Interests set forth in the table below (the
"Lower-Tier Regular Interests"), as classes of regular interests in the
Lower-Tier REMIC, and (ii) the sole class of residual interests in the
Lower-Tier REMIC, which will be represented by the Class LR Certificates.
The Upper-Tier REMIC will hold the Lower-Tier Regular Interests and
certain other related assets subject to this Agreement and will issue the
following Classes: the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-5, Class A-1A, Class A-1S, Class XS, Class XP, 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 O, Class P, Class Q and Class S
Certificates (the "Regular Certificates"), which are designated as classes of
regular interests, and the Class R Certificates, which are designated as the
sole class of residual interests, in the Upper-Tier REMIC.
The portion of the Trust Fund consisting of the Excess Interest and
proceeds thereof in the Grantor Trust Distribution Account will be treated as a
grantor trust (the "Grantor Trust") for federal income tax purposes. The Class T
Certificates will represent undivided beneficial interests in the Excess
Interest and proceeds thereof.
The following table sets forth the Class or Component designation,
the corresponding Lower-Tier REMIC Regular Interest (the "Corresponding
Lower-Tier REMIC Regular Interest"), and the Corresponding Components of the
Class X Certificates for each Class of the Upper-Tier REMIC Certificates (the
"Corresponding Certificates").
Corresponding
Lower-Tier REMIC Corresponding
Corresponding Regular Lower-Tier REMIC Components of Class
Certificates Interests(1) Principal Balance X Certificates(1)
---------------- ------------------ --------------------- ---------------------
Class A-1 LA-1-1 $1,100,461.54 XA-1-1
LA-1-2 $1,329,871.79 XA-1-2
LA-1-3 $17,347,897.44 XA-1-3
LA-1-4 $3,221,769.23 XA-1-4
Class A-D LA-D-1 $2,631,538.46 XX-X-0
XX-X-0 $3,180,128.21 XX-X-0
XX-X-0 $41,484,102.56 XX-X-0
XX-X-0 $7,704,230.77 XA-D-4
Class A-2 LA-2-1 $56,963,000 XA-2-1
LA-2-2 $67,953,000 XA-2-2
LA-2-3 $65,790,000 XA-2-3
LA-2-4 $65,157,000 XA-2-4
LA-2-5 $62,755,000 XA-2-5
LA-2-6 $20,082,000 XA-2-6
Class X-0 XX-0 x00,000,000 XX-0
Class A-AB LA-AB $89,260,000 XA-AB
Class A-4 LA-4-1 $108,536,000 XA-4-1
LA-4-2 $18,464,000 XA-4-2
Class A-5 LA-5-1 $44,342,000 XA-5-1
LA-5-2 $67,368,000 XA-5-2
LA-5-3 $52,205,000 XA-5-3
LA-5-4 $65,081,000 XA-5-4
LA-5-5 $96,645,000 XA-5-5
LA-5-6 $1,086,714,000 XA-5-6
Class A-1A LA-1A-1 $190,000 XA-1A-1
LA-1A-2 $218,000 XA-1A-2
LA-1A-3 $4,438,000 XA-1A-3
LA-1A-4 $5,157,000 XA-1A-4
LA-1A-5 $5,089,000 XA-1A-5
LA-1A-6 $4,930,000 XA-1A-6
LA-1A-7 $4,914,000 XA-1A-7
LA-1A-8 $4,776,000 XA-1A-8
LA-1A-9 $4,885,000 XA-1A-9
LA-1A-10 $18,306,000 XA-1A-10
LA-1A-11 $4,664,000 XA-1A-11
LA-1A-12 $4,510,000 XA-1A-12
LA-1A-13 $4,462,000 XA-1A-13
LA-1A-14 $4,258,000 XA-1A-14
LA-1A-15 $184,203,000 XA-1A-15
Class A-1S LA-1S-1 $116,000 XA-1S-1
LA-1S-2 $132,000 XX-0X-0
XX-0X-0 $2,697,000 XX-0X-0
XX-0X-0 $3,134,000 XX-0X-0
XX-0X-0 $3,093,000 XX-0X-0
XX-0X-0 $2,996,000 XX-0X-0
XX-0X-0 $2,987,000 XX-0X-0
XX-0X-0 $2,902,000 XX-0X-0
XX-0X-0 $2,968,000 XA-1S-9
LA-1S-10 $11,126,000 XX-0X-00
XX-0X-00 $2,834,000 XX-0X-00
XX-0X-00 $2,741,000 XX-0X-00
XX-0X-00 $2,712,000 XX-0X-00
XX-0X-00 $2,587,000 XA-1S-14
LA-1S-15 $111,945,000 XA-1S-15
Class A-M LA-M $328,240,000 XA-M
Class A-J LA-J $270,800,000 XA-J
Class B LB $22,321,000 XB
Class C LC $53,571,000 XC
Class D LD-1 $21,586,000 XD-1-1
LD-2 $9,663,000 XD-1-2
Class E LE-1 $21,130,000 XE-1
LE-2 $1,191,000 XE-2
Class F LF-1 $24,127,000 XF-1
LF-2 $2,659,000 XF-2
Class G LG-1 $18,428,000 XG-1
LG-2 $25,694,000 XG-2
LG-3 $520,000 XG-3
Class H LH-1 $3,835,000 XH-1
LH-2 $27,856,000 XH-2
LH-3 $8,486,000 XH-3
Class J LJ-1 $15,195,000 XJ-1
LJ-2 $24,983,000 XJ-2
Class K LK-1 $25,566,000 XK-1
LK-2 $14,612,000 XK-2
Class L LL-1 $8,147,000 XL-1
LL-2 $5,246,000 XL-2
Class M LM $8,928,000 XM
Class N LN $13,393,000 XN
Class O LO $4,464,000 XO
Class P LP $13,392,000 XP
Class Q LQ $4,465,000 XQ
Class S LS $40,177,872 XS
The Lower-Tier REMIC Regular Interest or Interests and the Component
or Components of the Class X Certificates that correspond to any particular
Class of Upper-Tier REMIC Regular Certificates also correspond to each other
and, accordingly, constitute the (i) "Corresponding Lower-Tier REMIC Regular
Interests" and (ii) "Corresponding Components", respectively, with respect to
each other.
The initial Certificate Balance of each of the Class R and Class LR
Certificates is zero. Additionally, the Class R and Class LR Certificates do not
have a Notional Balance. The Certificate Balance of any Class of Certificates
outstanding at any time represents the maximum amount which holders thereof are
entitled to receive as distributions allocable to principal from the cash flow
on the Mortgage Loans and the other assets in the Trust Fund; provided, however,
that in the event that amounts previously allocated as Realized Losses to a
Class of Certificates in reduction of the Certificate Balance thereof are
subsequently recovered (including without limitation after the reduction of the
Certificate Balance of such Class to zero), such Class may receive distributions
in respect of such recoveries in accordance with the priorities set forth in
Section 4.01.
As of the Cut-off Date, the Mortgage Loans have an aggregate Stated
Principal Balance equal to approximately $3,583,040,873.
The Mortgaged Property that secures the Mortgage Loan identified as
Loan No. 1 on the Mortgage Loan Schedule (the "Ala Moana Portfolio Mortgage
Loan"), also secures multiple separate mortgage loans to the same Borrower
(referred to herein as the "Ala Moana Portfolio B Loans"), which are subordinate
to the Ala Moana Portfolio Mortgage Loan, and multiple separate mortgage loans
to the same Borrower (the "Ala Moana Portfolio Companion Loans" and together
with the Ala Moana Portfolio Mortgage Loan and the Ala Moana Portfolio B Loans,
the "Ala Moana Portfolio Whole Loan"), which are pari passu to the Ala Moana
Portfolio Mortgage Loan. The Ala Moana Portfolio Whole Loan will be serviced
pursuant to this Agreement and the Ala Moana Portfolio Co-Lender Agreement, as
and to the extent provided herein.
The Mortgaged Property that secures the Mortgage Loan identified as
Loan No. 6 on the Mortgage Loan Schedule (the "Two Gateway Mortgage Loan"), also
secures one separate mortgage loan to the same Borrower (referred to herein as
the "Two Gateway B Loan" and together with the Two Gateway Mortgage Loan, the
"Two Gateway Whole Loan"), which is subordinate to the Two Gateway Mortgage
Loan. The Two Gateway Whole Loan will be serviced pursuant to this Agreement and
the Two Gateway Intercreditor Agreement, as and to the extent provided herein.
The Mortgaged Property that secures the Mortgage Loan identified as
Loan No. 7 on the Mortgage Loan Schedule (the "1111 Marcus Avenue Mortgage
Loan"), also secures one separate mortgage loan to the same Borrower (referred
to herein as the "1111 Marcus Avenue B Loan" and together with the 0000 Xxxxxx
Xxxxxx Mortgage Loan, the "1111 Marcus Avenue Whole Loan"), which is subordinate
to the 0000 Xxxxxx Xxxxxx Mortgage Loan. The 0000 Xxxxxx Xxxxxx Whole Loan will
be serviced pursuant to this Agreement and the 0000 Xxxxxx Xxxxxx Intercreditor
Agreement, as and to the extent provided herein.
The Mortgaged Property that secures the Mortgage Loan identified as
Loan No. 108 on the Mortgage Loan Schedule (the "Spectrum Centre Mortgage
Loan"), also secures one separate mortgage loan to the same Borrower (referred
to herein as the "Spectrum Centre B Loan" and together with the Spectrum Centre
Mortgage Loan, the "Spectrum Centre Whole Loan"), which is subordinate to the
Spectrum Centre Mortgage Loan. The Spectrum Centre Whole Loan will be serviced
pursuant to this Agreement and the Spectrum Centre Co-Lender Agreement, as and
to the extent provided herein.
The Mortgaged Property that secures the Mortgage Loan identified as
Loan No. 2 on the Mortgage Loan Schedule (the "ShopKo Portfolio Mortgage Loan"),
also secures multiple separate promissory notes to the same Borrower (referred
to herein as the "ShopKo Portfolio Companion Loans" and together with the ShopKo
Portfolio Mortgage Loan, the "ShopKo Portfolio Whole Loan"), which are pari
passu to the ShopKo Portfolio Mortgage Loan. The ShopKo Portfolio Whole Loan
will be serviced pursuant to the CGCMT 2006-C4 Pooling and Servicing Agreement,
which provides for servicing arrangements that are similar but not identical to
those under the Agreement, and the ShopKo Portfolio Co-Lender Agreement, as and
to the extent provided herein.
The Mortgaged Property that secures the Mortgage Loan identified as
Loan No. 5 on the Mortgage Loan Schedule (the "Fair Lakes Office Portfolio
Mortgage Loan"), also secures one separate mortgage loan to the same Borrower
(referred to herein as the "Fair Lakes Office Portfolio Companion Loan" and
together with the Fair Lakes Office Portfolio Mortgage Loan, the "Fair Lakes
Office Portfolio Whole Loan"), which is pari passu to the Fair Lakes Office
Portfolio Mortgage Loan. The Fair Lakes Office Portfolio Whole Loan will be
serviced pursuant to this Agreement and the Fair Lakes Office Portfolio
Co-Lender Agreement, as and to the extent provided herein.
The Ala Moana Portfolio B Loans, the Ala Moana Portfolio Companion
Loans, the Two Gateway B Loan, the 0000 Xxxxxx Xxxxxx B Loan, the Spectrum
Centre B Loan and the Fair Lakes Office Portfolio Companion Loan are referred to
herein as the "Serviced Companion Loans." The amounts attributable to the
Serviced Companion Loans will not be assets of the Trust Fund or the Trust
REMICs and will be beneficially owned by the related Serviced Companion Loan
Noteholder.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the other
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article.
"10-K Filing Deadline": As defined in Section 10.07.
"1111 Marcus Avenue B Loan": As defined in the Preliminary
Statement.
"1111 Marcus Avenue B Loan Noteholder": The holder of the Note for
the 0000 Xxxxxx Xxxxxx B Loan.
"1111 Marcus Avenue Control Appraisal Event": As defined in the 0000
Xxxxxx Xxxxxx Intercreditor Agreement.
"1111 Marcus Avenue Intercreditor Agreement": That certain co-lender
agreement, dated as of September 14, 2006 by and between Capmark Finance Inc.,
as note A lender, and SFT I, Inc., as note B lender, as from time to time
amended, supplemented or modified.
"1111 Marcus Avenue Mortgage Loan": As defined in the Preliminary
Statement.
"1111 Marcus Avenue Whole Loan": As defined in the Preliminary
Statement.
"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 and any related Serviced Companion Loan.
"Additional Form 10-D Disclosure": As defined in Section 10.06.
"Additional Form 10-K Disclosure": As defined in Section 10.07.
"Additional Servicer": Each Affiliate of the Master Servicer, the
Special Servicer, the Trustee, the Mortgage Loan Sellers or the Underwriters,
that Services any of the Mortgage Loans, and each Person, other than the Special
Servicer, who is not an Affiliate of the Master Servicer, the Trustee, the
Mortgage Loan Sellers or the Underwriters, who Services 10% or more of the
Mortgage Loans (based on their Stated Principal Balance).
"Additional Trust Fund Expense": Any expense incurred with respect
to the Trust Fund (including, for the avoidance of doubt, Special Servicing
Fees, Liquidation Fees and Workout Fees) and not otherwise included in the
calculation of a Realized Loss that would result in the Holders of Regular
Certificates receiving less than the full amount of principal and/or the
Interest Accrual Amount to which they are entitled on any Distribution Date.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the
aggregate amount of P&I Advances and Property Advances for which the Master
Servicer, the Special Servicer or the Trustee, as applicable, has not been
reimbursed and on Servicing Fees, Trustee Fees or Special Servicing Compensation
for which the Master Servicer, the Trustee or the Special Servicer, as
applicable, has not been timely paid or reimbursed for the number of days from
the date on which such Advance was made or such Servicing Fees, Trustee Fees or
Special Servicing Compensation were due to the date of payment or reimbursement
of the related Advance or other such amount, less any amount of interest
previously paid on such Advance or Servicing Fees, Trustee Fees or Special
Servicing Compensation; provided, that if the related Borrower makes payment of
an amount in respect of which such Advance was made with interest at the Default
Rate, the Advance Interest Amount payable to the Master Servicer, the Special
Servicer or the Trustee shall be paid first, from the amount of Default Interest
on the related Mortgage Loan by such Borrower, second, from late payment fees on
the related Mortgage Loan by the related Borrower, and third, upon determining
in good faith that such Advance Interest Amount is not recoverable from the
amounts described in first or second, from other amounts on deposit in the
Collection Account and if such funds are insufficient for such reimbursement
then from the other Master Servicer's respective Collection Account.
"Advance Rate": A per annum rate equal to the Prime Rate (as most
recently published in the "Money Rates" section of The Wall Street Journal, New
York edition, from time to time). Interest at the Advance Rate will accrue from
(and including) the date on which the related Advance is made or the related
expense incurred to (but excluding) the date on which such amounts are recovered
out of amounts received on the Mortgage Loan as to which such Advances were made
or servicing expenses incurred or the first Servicer Remittance Date after a
determination of non-recoverability, as the case may be, is made, provided that
such interest at the Advance Rate will continue to accrue to the extent funds
are not available in the Collection Accounts for such reimbursement of such
Advance. Notwithstanding the foregoing, with respect to any Mortgage Loan that
has a grace period that expires after the Determination Date, such interest
shall not begin to accrue until the day succeeding the expiration date of such
grace period.
"Advance Recovery Report": A report substantially in the form of,
and containing the information called for in, the downloadable form of the
"Advance Recoverability 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 and, insofar
as it requires the presentation of information in addition to that called for by
the form of the "Advance Recovery Report" available as of the Closing Date on
the CMSA website, is reasonably acceptable to the Master Servicer.
"Adverse Companion Loan Securities Grantor Trust Event": Any action
that, under the Grantor Trust Provisions, if taken or not taken, as the case may
be, could endanger the status of any grantor trust created under a Serviced
Companion Loan Securitization Agreement, as a grantor trust under the Grantor
Trust Provisions.
"Adverse Companion Loan Securities REMIC Event": Any action, that,
under the REMIC Provisions, if taken or not taken, as the case may be, could (i)
endanger the status of any REMIC created under a Serviced Companion Loan
Securitization Agreement as a REMIC or (ii) result in the imposition of a tax
upon a REMIC or a trust fund created under a Serviced Companion Loan
Securitization Agreement (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").
"Adverse Grantor Trust Event": Any action that, under the Grantor
Trust Provisions, if taken or not taken, as the case may be, could endanger the
status of the Grantor Trust as a grantor trust under the Grantor Trust
Provisions.
"Adverse REMIC Event": Any action, that, under the REMIC Provisions,
if taken or not taken, as the case may be, could (i) endanger the status of
either Trust REMIC as a REMIC or (ii) result in the imposition of a tax upon
either Trust 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").
"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. The Trustee may obtain
and rely on an Officer's Certificate of the Master Servicer, the Special
Servicer or the Depositor to determine whether any Person is an Affiliate of
such party.
"Affiliated Person": Any Person (other than a Rating Agency)
involved in the organization or operation of the Depositor or an affiliate, as
defined in Rule 405 of the Act, of such Person.
"Agent Member": Members of, or Depository Participants in, the
Depository.
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Ala Moana Portfolio B Loan": As defined in the Preliminary
Statement.
"Ala Moana Portfolio B Loan Noteholder": The holder of the Note for
the Ala Moana Portfolio B Loan.
"Ala Moana Portfolio Companion Loan": As defined in the Preliminary
Statement.
"Ala Moana Portfolio Companion Loan Noteholder": The holder of the
Note for the Ala Moana Portfolio Companion Loan.
"Ala Moana Portfolio Control Appraisal Event": The "Control
Appraisal Period" under the Ala Moana Portfolio Intercreditor Agreement.
"Ala Moana Portfolio Controlling Holder": The "Controlling Holder"
under the Ala Moana Portfolio Intercreditor Agreement
"Ala Moana Portfolio Intercreditor Agreement": That certain amended
and restated co-lender and servicing agreement, dated as of October 30, 2006 by
and between LaSalle Bank National Association, as note B-1A lender, note B-1B
lender, note B-1C lender, note C-1 lender, note D-1 lender, note E-1 lender and
note F-1 lender, and Citigroup Global Markets Realty Corp., as note A-1 lender,
note A-2 lender, note A-3 lender, note A-4 lender, note A-5 lender, note A-6
lender, note A-7 lender, note A-8 lender, note B-2A lender, note B-2B lender,
note B-2C lender, note C-2 lender, note D-2 lender, note E-2 lender and note F-2
lender, as from time to time amended, supplemented or modified.
"Ala Moana Portfolio Mortgage Loan": As defined in the Preliminary
Statement.
"Ala Moana Portfolio Required Holders": The "Required Lenders" under
the Ala Moana Portfolio Intercreditor Agreement. For the purposes of the vote of
the "Note A-2 Lender," in determining the "Ala Moana Portfolio Required
Holders," the Master Servicer or Special Servicer, as applicable, shall follow
the instructions of the Controlling Class Representative in accordance with this
Agreement.
"Ala Moana Portfolio Whole Loan": As defined in the Preliminary
Statement.
"Allocated Loan Amount": With respect to each Mortgaged Property,
the portion of the principal amount of the related Mortgage Loan allocated to
such Mortgaged Property in the applicable Mortgage, Loan Agreement or the
Mortgage Loan Schedule.
"Annual Compliance Report": A report consisting of an annual
statement of compliance required by Section 10.12 hereof and an annual report of
an Independent accountant required pursuant to Section 10.13 hereof
"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.
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(a).
"Applicable Procedures": As defined in Section 5.02(c)(ii).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be such state or local tax laws whose
applicability shall have been brought to the attention of the Trustee by either
(i) an opinion of counsel delivered to it, 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, which appraisal satisfies the definition of appraisal contained in 12 CFR
ss. 62.47.
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan (other than the ShopKo Portfolio Mortgage Loan) or any Serviced
Whole Loan, an amount calculated by the Master Servicer based upon an Appraisal
obtained by the Special Servicer by the first Determination Date following the
date the Special Servicer receives the required Appraisal or performs the
required Small Loan Appraisal Estimate equal to the excess, if any, of (a) the
Stated Principal Balance of such Mortgage Loan or the applicable Serviced Whole
Loan over (b) the excess of (i) 90% of the sum of the appraised values (net of
any prior mortgage liens but including all escrows and reserves (other than
escrows and reserves for taxes and insurance)) of the related Mortgaged
Properties securing such Mortgage Loan or the applicable Serviced Whole Loan as
determined by Updated Appraisals obtained by the Special Servicer (the costs of
which shall be paid by the Master Servicer as a Property Advance) minus any
downward adjustments the Special Servicer deems appropriate (without implying
any duty to do so) based upon its review of the Appraisal and any other
information it may deem appropriate (or, in the case of Mortgage Loans or
Serviced Whole Loans having a Stated Principal Balance under $2,000,000, 90% of
the sum of the Small Loan Appraisal Estimates of the related Mortgaged
Properties (as described below)) over (ii) the sum of (A) to the extent not
previously advanced by the Master Servicer or the Trustee, all unpaid interest
on such Mortgage Loan or the applicable Serviced Whole Loan at a per annum rate
equal to the Mortgage Rate (or with respect to the applicable Serviced Whole
Loan, the weighted average of the Mortgage Rate for the related Mortgage Loan(s)
and Serviced Companion Loans), (B) all unreimbursed Property Advances and the
principal portion of all xxxxxxxxxxxx X&X Advances, and all unpaid interest on
Advances at the Advance Rate, in respect of such Mortgage Loan or the applicable
Serviced Whole Loan, (C) any other unpaid Additional Trust Fund Expenses in
respect of such Mortgage Loan or the applicable Serviced Whole Loan (but subject
to the provisions of Section 1.02(e)) and (D) all currently due and unpaid real
estate taxes, ground rents and assessments and insurance premiums (net of any
escrows and reserves therefor) and all other amounts due and unpaid with respect
to such Mortgage Loan or the applicable Serviced Whole Loan (which taxes,
premiums (net of any escrows and reserves therefor) and other amounts have not
been the subject of an Advance by the Master Servicer, the Special 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 Updated Appraisal or Small Loan Appraisal
Estimate, as applicable, referred to above within 60 days of the Appraisal
Reduction Event (or in the case of an Appraisal Reduction Event occurring by
reason of clause (ii) of the definition thereof, within 30 days of such
Appraisal Reduction Event), the Appraisal Reduction Amount shall be deemed to be
an amount equal to 25% of the current Stated Principal Balance of the related
Mortgage Loan or the applicable Serviced Whole Loan until such time as such
Updated Appraisal or Small Loan Appraisal Estimate referred to above is received
and the Appraisal Reduction Amount is calculated. Notwithstanding the foregoing,
within 60 days after the Appraisal Reduction Event (or in the case of an
Appraisal Reduction Event occurring by reason of clause (ii) of the definition
thereof, 30 days) (A) with respect to Mortgage Loans or an applicable Serviced
Whole Loan having a Stated Principal Balance of $2,000,000 or higher, the
Special Servicer shall obtain an Updated Appraisal or (B) with respect to
Mortgage Loans or an applicable Serviced Whole Loan having a Stated Principal
Balance of less than $2,000,000, the Special Servicer, at its option, shall (i)
provide a Small Loan Appraisal Estimate within the same time period as an
Appraisal would otherwise be required and such Small Loan Appraisal Estimate
shall be used in lieu of an Appraisal to calculate the Appraisal Reduction
Amount for such Mortgage Loans or applicable Serviced Whole Loan; or (ii) with
the consent of the Controlling Class Representative, obtain an Updated
Appraisal. On the first Distribution Date occurring on or after the delivery of
such Updated Appraisal or completion of such Small Loan Appraisal Estimate, as
applicable, the Special Servicer shall adjust the Appraisal Reduction Amount to
take into account such Updated Appraisal (regardless of whether the Updated
Appraisal is higher or lower than the Small Loan Appraisal Estimate). Each
Appraisal Reduction Amount shall also be adjusted to take into account any
subsequent Small Loan Appraisal Estimate or Updated Appraisal, as applicable,
and any annual letter updates, as of the date of each such subsequent Small Loan
Appraisal Estimate, Updated Appraisal or letter update, as applicable. With
respect to each Mortgage Loan that is cross-collateralized with any other
Mortgage Loan, the value of each Mortgaged Property that is security for each
Mortgage Loan in such cross-collateralized group, as well as the outstanding
amounts under each such Mortgage Loan shall be taken into account when
calculating such Appraisal Reduction Amount.
At any time that an Appraisal Reduction Amount exists with respect
to any Mortgage Loan (other than the ShopKo Portfolio Mortgage Loan), the
Controlling Class Representative may, at its own expense, obtain and deliver to
the Master Servicer, the Special Servicer and the Trustee an Appraisal
satisfactory to the Special Servicer that satisfies the requirements of an
"Updated Appraisal," and upon the written request of the Controlling Class
Representative, the Special Servicer shall, subject to the Servicing Standard,
recalculate the Appraisal Reduction Amount in respect of such Mortgage Loan or
the applicable Serviced Whole Loan based on such Appraisal (but subject to any
downward adjustment by the Special Servicer as provided in the definition of
Appraisal Reduction Amount) and shall notify the Trustee, the Master Servicer,
the Controlling Class Representative and the Directing Certificateholder of such
recalculated Appraisal Reduction Amount.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction Amount related to a Mortgage Loan (other than the ShopKo
Portfolio Mortgage Loan) or a Serviced Whole Loan or the related REO Property
will be reduced to zero as of the date the related Mortgage Loan or Serviced
Whole Loan is paid in full, liquidated, repurchased or otherwise removed from
the Trust Fund.
Each Serviced Whole Loan will be treated as a single mortgage loan
for purposes of calculating an Appraisal Reduction Amount with respect to the
mortgage loans that comprise such Serviced Whole Loan.
In the case of the ShopKo Portfolio Whole Loan (or any successor REO
Loan with respect thereto), any Appraisal Reduction Amount will be calculated by
the CGMCT 2006-C4 Special Servicer under and in accordance with the CGMCT
2006-C4 Pooling and Servicing Agreement. Any Appraisal Reduction Amount with
respect to the ShopKo Portfolio Whole Loan shall be allocated pursuant to the
provisions of the CGMCT 2006-C4 Pooling and Servicing Agreement.
Any Appraisal Reduction Amount on a Serviced Whole Loan shall be
deemed allocated, first, to the related B Loan (and, if there is more than one
related B Loan, allocated to the B Loans in accordance with the related
Co-Lender Agreement and, if the related Co-Lender Agreement does not so provide,
in reverse order of payment priority), if any, up to the outstanding principal
balance thereof, if any, and, then, to the related Mortgage Loan, or if such
Serviced Whole Loan contains a Pari Passu Companion Loan, the Mortgage Loan and
any related Pari Passu Companion Loan, pro rata, based on their outstanding
principal balances.
"Appraisal Reduction Event": With respect to any Mortgage Loan
(other than the ShopKo Portfolio Mortgage Loan) or Serviced Whole Loan, the
first Distribution Date following the earliest of (i) the date on which such
Mortgage Loan or Serviced Whole Loan becomes a Modified Mortgage Loan, (ii) the
90th day following the occurrence of any uncured delinquency in Monthly Payments
with respect to such Mortgage Loan or Serviced Whole Loan, (iii) receipt of
notice that the related Borrower has filed a bankruptcy petition or the date on
which a receiver is appointed and continues in such capacity in respect of a
Mortgaged Property securing such Mortgage Loan or Serviced Whole Loan or 60 days
after the Borrower becomes the subject of involuntary bankruptcy proceedings and
such proceedings are not dismissed, (iv) the date on which the Mortgaged
Property securing such Mortgage Loan or Serviced Whole Loan becomes an REO
Property, (v) the 60th day after the third anniversary of any extension of a
Mortgage Loan or a Serviced Whole Loan and (vi) with respect to a Balloon Loan,
a payment default shall have occurred with respect to the related Balloon
Payment (except in the case where written evidence of a refinancing commitment
is received prior to the related maturity date that provides that such
refinancing will occur within 60 days of the balloon payment due date and that
is otherwise acceptable in form and substance to the Special Servicer and the
Controlling Class Representative prior to the date such balloon payment was due,
an Appraisal Reduction 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). The Special Servicer shall notify the Master
Servicer promptly upon the occurrence of any of the foregoing events with
respect to any Specially Serviced Loan.
"ARD Loan": Any Mortgage Loan the terms of which provide that if,
after an Anticipated Repayment Date, the borrower has not prepaid such Mortgage
Loan in full, any principal outstanding on that date will accrue interest at the
Revised Rate rather than the Initial Rate.
"Asset Status Report": As defined in Section 3.26(f).
"Assignment of Leases, Rents and Profits": With respect to any
Mortgaged Property, any assignment of leases, rents and profits or similar
agreement executed by the Borrower, 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.
"Assignment of Mortgage": An assignment of Mortgage without
recourse, notice of transfer or equivalent instrument, in recordable form, which
is sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording.
"Assumed Scheduled Payment": 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 (or portion thereof not received),
based on the constant 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 Note or the amortization or payment schedule thereof (as calculated with
interest at the related Mortgage Rate) (if any), assuming such Balloon Payment
had not become due, after giving effect to any prior modification, and (b)
interest at the applicable Net Mortgage Pass-Through Rate.
"Assumption Fees": Any fees collected by the Master Servicer or the
Special Servicer in connection with an assumption or modification of a Mortgage
Loan or a Serviced Whole Loan or substitution of a Borrower (or an interest
therein) thereunder (in each case, as set forth in the related Loan Documents)
permitted to be executed under the provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the
Trustee pursuant to Section 3.20.
"Available Funds": For a Distribution Date, the sum of (i) all
previously undistributed Monthly Payments or other receipts on account of
principal and interest (including Unscheduled Payments and any Net REO Proceeds,
if any, transferred from an REO Account pursuant to Section 3.17(b), but
excluding any Excess Liquidation Proceeds) on or in respect of the Mortgage
Loans, received by or on behalf of the Master Servicer in the Collection Period
relating to such Distribution Date, (ii) all P&I Advances made by the Master
Servicer or the Trustee, as applicable, in respect of the Mortgage Loans as of
such Distribution Date, (iii) all other amounts received by the Master Servicer
in such Collection Period (including the portion of Loss of Value Payments
deposited into its Collection Account pursuant to Section 3.06(f)) and required
to be placed in the Collection Account by the Master Servicer pursuant to
Section 3.05, (iv) without duplication, any late Monthly Payments on or in
respect of the Mortgage Loans received after the end of the Collection Period
relating to such Distribution Date but prior to the close of business on the
Business Day prior to the related Servicer Remittance Date, (v) any Servicer
Prepayment Interest Shortfalls remitted by the Master Servicer to its Collection
Account and (vi) with respect to the Distribution Date in March of each calendar
year (or February if the final Distribution Date occurs in such month), the
Withheld Amounts deposited in the Interest Reserve Account by the Trustee in
accordance with Section 3.05(f); but excluding the following:
(a) amounts permitted to be used to reimburse the Master Servicer,
the Special Servicer or the Trustee, as applicable, for previously
unreimbursed Advances and Workout-Delayed Reimbursement Amounts and
interest thereon as described in Section 3.06;
(b) those portions of each payment of interest which represent the
applicable Servicing Fee and Trustee Fee and an amount representing any
applicable Special Servicing Compensation;
(c) all amounts in the nature of late payment fees (to the extent
not applied to the reimbursement of the Advance Interest Amount and/or
Additional Trust Fund Expenses as provided in Section 3.06 hereof), Net
Prepayment Interest Excess, Net Default Interest, extension fees, loan
service transaction fees, demand fees, beneficiary statement charges,
Assumption Fees and similar fees on the Mortgage Loans, which the Master
Servicer or the Special Servicer is entitled to retain as Servicing
Compensation or Special Servicing Compensation, respectively;
(d) all amounts representing scheduled Monthly Payments on Mortgage
Loans due after the related Due Date;
(e) that portion of Net Liquidation Proceeds, Net Insurance Proceeds
and Net Condemnation Proceeds with respect to a Mortgage Loan which
represents any unpaid Servicing Fee, Trustee Fee and Special Servicing
Compensation, to which the Master Servicer, any sub-servicer, Trustee
and/or the Special Servicer are entitled;
(f) all amounts representing certain fees and expenses, including
indemnity amounts, reimbursable or payable to the Master Servicer, the
Special Servicer or the Trustee and other amounts permitted to be retained
by the Master Servicer or withdrawn by the Master Servicer from its
Collection Account to the extent expressly set forth in this Agreement
(including, without limitation, as provided in Section 3.06 and including
any indemnities provided for herein), including interest thereon as
expressly provided in this Agreement;
(g) any interest or investment income on funds on deposit in the
Collection Account or any interest on Permitted Investments in which such
funds may be invested;
(h) all amounts received with respect to each Mortgage Loan
previously purchased, repurchased or replaced from the Trust Fund pursuant
to Sections 2.03(d), 3.18 or 9.01 during the related Collection Period and
subsequent to the date as of which such Mortgage Loan was purchased,
repurchased or replaced;
(i) the amount reasonably determined by the Trustee to be necessary
to pay any applicable federal, state or local taxes imposed on the
Upper-Tier REMIC or the Lower-Tier REMIC under the circumstances and to
the extent described in Section 4.05;
(j) Excess Interest;
(k) Prepayment Premiums and Yield Maintenance Charges with respect
to the Mortgage Loans; and
(l) with respect to the Distribution Date occurring in (A) January
of each calendar year that is not a leap year and (B) February of each
calendar year, in each case, unless such Distribution Date is the final
Distribution Date, the Withheld Amounts deposited in the Interest Reserve
Account by the Trustee in accordance with Section 3.05(f).
"B Loan": The Ala Moana Portfolio B Loans, the Two Gateway B Loan,
the 0000 Xxxxxx Xxxxxx B Loan and the Spectrum Centre B Loan, all of which are
identified in the Preliminary Statement, as applicable and as the context may
require.
"Balloon Loan": Any Mortgage Loan or Serviced Whole Loan that
requires a payment of principal on the maturity date in excess of its constant
Monthly Payment.
"Balloon Payment": With respect to each Balloon Loan, the scheduled
payment of principal due on the Maturity Date (less principal included in the
applicable amortization schedule or scheduled Monthly Payment).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and any of the Class A-1, Class A-1D, Class A-2, Class A-3,
Class A-AB, Class A-4, Class A-5, Class A-1A, Class A-1S, Class A-M, Class A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and Class
K Certificates, a fraction (not greater than 1) (a) whose numerator is the
greater of zero and the amount, if any, by which (i) the Pass-Through Rate on
such Class of Certificates exceeds (ii) the yield rate (as provided by the
Master Servicer) used in calculating the Prepayment Premium or Yield Maintenance
Charge, as applicable, with respect to such Principal Prepayment and (b) whose
denominator is the amount, if any, by which the (i) Mortgage Rate on such
Mortgage Loan exceeds (ii) the yield rate (as provided by the Master Servicer)
used in calculating the Prepayment Premium or Yield Maintenance Charge, as
applicable, with respect to such Principal Prepayment; provided, however, that
if such yield rate is greater than or equal to the lesser of (x) the Mortgage
Rate on such Mortgage Loan and (y) the Pass-Through Rate described in clause
(a)(i) above, then the Base Interest Fraction shall be zero.
"BCRE": Barclays Capital Real Estate Inc., in its capacity as a
Mortgage Loan Seller, and its successors.
"BCRE Indemnification Agreement": The agreement dated as of October
23, 2006 from BCRE to the Depositor and the Underwriters.
"BCRE Purchase Agreement": The Mortgage Loan Purchase Agreement,
dated and effective the Closing Date, between BCRE and the Depositor.
"Beneficial Owner": With respect to a Global 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 Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository) with
respect to such Classes. Each of the Trustee and the Master Servicer shall have
the right to require, as a condition to acknowledging the status of any Person
as a Beneficial Owner under this Agreement, that such Person provide evidence at
its expense of its status as a Beneficial Owner hereunder.
"Borrower": With respect to any Mortgage Loan, Companion Loan or
Serviced Whole Loan, any obligor or obligors on any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Breach": As defined in Section 2.03(d).
"Business Day": Any day other than (i) a Saturday or a Sunday, (ii)
a legal holiday in Xxx Xxxx, Xxx Xxxx, Xxxxxxx, Xxxxxxxx or the principal cities
in which either Master Servicer, the Special Servicer or the Trustee conducts
servicing or trust operations or (iii) a day on which banking institutions or
savings associations in Xxx Xxxx, Xxx Xxxx, Xxxxxxx, Xxxxxxxx or the principal
cities in which either Master Servicer, the Special Servicer or the Trustee
conduct servicing or trust operations are authorized or obligated by law or
executive order to be closed.
"CFI": Capmark Finance Inc., in its capacity as a Mortgage Loan
Seller, and its successors.
"CFI Indemnification Agreement": The agreement dated as of October
23, 2006 from CFI to the Depositor and the Underwriters.
"CFI Purchase Agreement": The Mortgage Loan Purchase Agreement,
dated and effective the Closing Date, between CFI and the Depositor.
"Cash Collateral Account": With respect to any Mortgage Loan or
Serviced Whole Loan that has a Lock-Box Account, any account or accounts created
pursuant to the related Mortgage, Loan Agreement, Cash Collateral Account
Agreement or other Loan Document into which the Lock-Box Account monies are
swept on a regular basis for the benefit of the Trustee as successor to the
related Mortgage Loan Seller. Any Cash Collateral Account shall be beneficially
owned for federal income tax purposes by the Person who is entitled to receive
all reinvestment income or gain thereon in accordance with the terms and
provisions of the related Mortgage Loan and Section 3.07, which Person shall be
taxed on all reinvestment income or gain thereon in accordance with the terms of
the related Mortgage Loan or Serviced Whole Loan. The Master Servicer shall be
permitted to make withdrawals therefrom for deposit into its Collection Account
or the applicable Serviced Whole Loan Collection Account, as applicable. To the
extent not inconsistent with the terms of the related Loan Documents, each such
Cash Collateral Account shall be an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage
Loan or Serviced Whole Loan, the cash collateral account agreement, if any,
between the related Originator and the related Borrower, pursuant to which the
related Cash Collateral Account, if any, may have been established.
"Certificate": Any Class A-1, Class A-1D, Class A-2, Class A-3,
Class A-AB, Class A-4, Class A-5, Class A-1A, Class A-1S, Class XS, Class XP,
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 O, Class P, Class Q,
Class S, Class T, Class R or Class LR Certificate issued, authenticated and
delivered hereunder.
"Certificate Balance": With respect to any Class of Certificates
(other than the Class XS, Class XP, Class T, Class R and Class LR Certificates)
(a) on or prior to the first Distribution Date, an amount equal to the aggregate
initial Certificate Balance of such Class, as specified in the Preliminary
Statement hereto, (b) as of any date of determination after the first
Distribution Date, the Certificate Balance of such Class of Certificates on the
Distribution Date immediately prior to such date of determination less any
distributions allocable to principal and any allocations of Realized Losses made
thereon on such prior Distribution Date.
"Certificate Custodian": Initially, the Trustee; thereafter, any
other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person whose name is registered in the
Certificate Register subject to the following:
(a) except as provided in clauses (b) and (d), for the purpose of
giving any consent or taking any action pursuant to this Agreement, any
Certificate beneficially owned by the Depositor, the Master Servicer, the
Special Servicer, the Trustee, a Manager or a Borrower or any Person known
to a Responsible Officer of the Certificate Registrar to be an Affiliate
of any 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 or take any such action has been obtained;
(b) for purposes of obtaining the consent of Certificateholders to
an amendment of this Agreement, any Certificates beneficially owned by the
Master Servicer or the Special Servicer or an Affiliate thereof shall be
deemed to be outstanding, unless such amendment relates to compensation of
the Master Servicer or the Special Servicer or benefits the Master
Servicer or the Special Servicer (in its capacity as such) or any
Affiliate thereof (other than solely in its capacity as Certificateholder)
in any material respect, in which case such Certificates shall be deemed
not to be outstanding;
(c) except as provided in clause (d) below, for purposes of
obtaining the consent of Certificateholders to any action proposed to be
taken by the Special Servicer with respect to a Specially Serviced Loan,
any Certificates beneficially owned by the Special Servicer or an
Affiliate thereof shall be deemed not to be outstanding;
(d) for the purpose of exercising its rights as a member of the
Controlling Class or as a Controlling Class Representative (if
applicable), any Certificate beneficially owned by a Master Servicer, the
Special Servicer or an Affiliate thereof will be deemed outstanding; and
(e) for purposes of providing or distributing any reports,
statements or other information required or permitted to be provided to a
Certificateholder hereunder, a Certificateholder shall include any
Beneficial Owner, or (subject to a confidentiality agreement attached
hereto as Exhibit U) any Person identified by a Beneficial Owner as a
prospective transferee of a Certificate beneficially owned by such
Beneficial Owner, but only if the Trustee or another party hereto
furnishing such report, statement or information has been provided with
the name of the Beneficial Owner of the related Certificate or the Person
identified as a prospective transferee thereof. For purposes of the
foregoing, the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent or other such Person may rely, without
limitation, on a Depository Participant listing from the Depository or
statements furnished by a Person that on their face appear to be
statements from a Depository Participant to such Person indicating that
such Person beneficially owns Certificates.
"Certifying Person": As defined in Section 10.8.
"Certifying Servicer": As defined in Section 10.11.
"CGCMT 2006-C4 Controlling Class Representative": The controlling
class representative appointed under and in accordance with the CGCMT 2006-C4
Pooling and Servicing Agreement.
"CGCMT 2006-C4 Master Servicer": The master servicer appointed under
and in accordance with the CGCMT 2006-C4 Pooling and Servicing Agreement. "
CGCMT 2006-C4 Pooling and Servicing Agreement": The pooling and
servicing agreement related to the Citigroup Commercial Mortgage Securities Inc.
Commercial Mortgage Pass-Through Certificates, Series 2006-C4.
"CGCMT 2006-C4 Special Servicer": The special servicer appointed
under and in accordance with the CGCMT 2006-C4 Pooling and Servicing Agreement.
"CGM": Citigroup Global Markets, Inc.
"CGMRC": Citigroup Global Markets Realty Corp., in its capacity as a
Mortgage Loan Seller, and its successors.
"CGMRC Indemnification Agreement": The agreement dated as of October
23, 2006 from CGMRC to the Depositor and the Underwriters.
"CGMRC Purchase Agreement": The Mortgage Loan Purchase Agreement,
dated and effective the Closing Date, between CGMRC and the Depositor.
"Class": With respect to the Certificates or Lower-Tier Regular
Interests, all of the Certificates or Lower-Tier Regular Interests bearing the
same alphabetical and numerical Class designation.
"Class A Combined Certificates": The Class A-1, Class A-1D, Class
A-2, Class A-3, Class A-AB, Class A-4, Class A-5, Class A-1S, Class A-M and
Class A-J Certificates.
"Class A Combined Interest Distribution Amount" means, Available
Funds allocable to Mortgage Loans in Loan Group 1 and the Loan Group 2 Interest
Distribution Amount minus the Class A-1A Group 2 Interest Distribution Amount.
"Class A Combined Group 2 Principal Distribution Amount" means, the
Loan Group 2 Principal Distribution Amount minus the Class A-1A Group 2
Principal Distribution Amount.
"Class A-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-1 Pass-Through Rate": A per annum rate equal to 5.454%.
"Class A-1A Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-7 hereto.
"Class A-1A Group 2 Interest Distribution Amount": The Loan Group 2
Interest Distribution Amount multiplied by the quotient of (y) the Certificate
Balance of the Class A-1A Certificates and (z) the sum of the Certificate
Balances of the Class A-1A Certificates and the Class A-1S Certificates.
"Class A-1A Group 2 Principal Distribution Amount": The Loan Group 2
Principal Distribution Amount multiplied by the quotient of (y) the Certificate
Balance of the Class A-1A Certificates and (z) the sum of the Certificate
Balances of the Class A-1A Certificates and the Class A-1S Certificates.
"Class A-1A Pass-Through Rate": A per annum rate equal to 5.624%.
"Class A-1D Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-1D Pass-Through Rate": A per annum rate equal to 4.181%.
"Class A-1S Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-8 hereto.
"Class A-1S Pass-Through Rate": A per annum rate equal to 5.614%.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-2 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to 5.560%.
"Class A-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-3 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to 5.607%.
"Class A-4 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-5 hereto.
"Class A-4 Pass-Through Rate": A per annum rate equal to 5.658%.
"Class A-5 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-6 hereto.
"Class A-5 Pass-Through Rate": A per annum rate equal to 5.617%.
"Class A-AB Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-4 hereto.
"Class A-AB Pass-Through Rate": A per annum rate equal to 5.608%.
"Class A-J Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-11 hereto.
"Class A-J Pass-Through Rate": A per annum rate equal to 5.688%.
"Class A-M Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-10 hereto.
"Class A-M Pass-Through Rate": A per annum rate equal to 5.648%.
"Class B Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-12 hereto.
"Class B Pass-Through Rate": A per annum rate equal to 5.728%.
"Class C Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-13 hereto.
"Class C Pass-Through Rate": A per annum rate equal to 5.748%.
"Class D Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-14 hereto.
"Class D Pass-Through Rate": A per annum rate equal to 5.787%.
"Class E Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-15 hereto.
"Class E Pass-Through Rate": A per annum rate equal to 5.817%.
"Class F Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-16 hereto.
"Class F Pass-Through Rate": A per annum rate equal to 5.892%.
"Class G Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-17 hereto.
"Class G Pass-Through Rate": A per annum rate equal to 5.990%.
"Class H Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-18 hereto.
"Class H Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate less .1781%.
"Class Interest Shortfall": On any Distribution Date for any Class
of Certificates, the amount of interest required to be distributed to the
Holders of such Class pursuant to Section 4.01(b).
"Class J Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-19 hereto.
"Class J Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate less .0801%.
"Class K Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-20 hereto.
"Class K Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class L Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-21 hereto.
"Class L Pass-Through Rate": A per annum rate equal to the lesser of
5.330% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class LR Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-30 hereto. The Class
LR Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class M Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-22 hereto.
"Class M Pass-Through Rate": A per annum rate equal to the lesser of
5.330% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class N Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-23 hereto.
"Class N Pass-Through Rate": A per annum rate equal to the lesser of
5.330% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class O Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-24 hereto.
"Class O Pass-Through Rate": A per annum rate equal to the lesser of
5.330% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class P Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-25 hereto.
"Class P Pass-Through Rate": A per annum rate equal to the lesser of
5.330% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class Q Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-26 hereto.
"Class Q Pass-Through Rate": A per annum rate equal to the lesser of
5.330% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class R Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-29 hereto. The Class
R Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class S Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-27 hereto.
"Class S Pass-Through Rate": A per annum rate equal to the lesser of
5.330% per annum and the Weighted Average Net Mortgage Pass-Through Rate.
"Class T Certificate": A Certificate designated as "Class T" on the
face thereof, in the form of Exhibit A-28 hereto.
"Class X Certificates": The Class XS and Class XP Certificates,
collectively.
"Class X Notional Amount": The Class XS Notional Amount or the Class
XP Notional Amount.
"Class XP Certificate": Any one of the Certificates with a "Class
XP" designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class XP Component Crossover Date": With respect to each Class XP
Component, the related Class XP Crossover Date as set forth in the table below:
Class XP Component
Class XP Component Crossover Date
------------------------------------------------------- ----------------------
XX-0 -0, XX-X-0, XX-0X-0 and XA-1S-2 May 2007
XX-0-0, XX-X-0, XX-0X-0 and XA-1S-3 November 2007
XX-0-0, XX-X-0, XX-0X-0, XX-0X-0 and XA-2-1 May 2008
XX-0X-0, XX-0X-0, XX-0-0, XX-0, X-M and XN November 2008
XX-0X-0, XX-0X-0, XX-0-0, XK-1 and XL-2 May 2009
XX-0X-0, XX-0X-0, XX-0-0, XX-0 and XK-2 November 2009
XX-0X-0, XX-0X-0, XX-0-0, XX-0 and XJ-2 May 2010
XX-0X-0, XX-0X-0, XX-XX, XX-0-0, XX-0, XX-0-0 and XH-2 November 2010
XX-0X-00, XX-0X-00, XX-0-0, XX-0-0, XX-0 and XH-3 May 2011
XX-0X-00, XX-0X-00, XX-0-0 and XG-2 November 2011
XX-0X-00, XX-0X-00, XX-0-0, XX-0 and XG-3 May 2012
XX-0X-00, XX-0X-00, XX-0-0, XX-0-0, XX-0 and XF-2 November 2012
XX-0X-00, XX-0X-00, XX-0-0, XX-0 and XE-2 May 2013
XX-0X-00, XX-0X-00, XX-0-0, XX-X, XA-J, XB, XC and XD-2 November 2013
Class XP Component Class XP Component Crossover Date XX-0 -0,
XX-X-0, XX-0X-0 and XA-1S-2 May 2007 XX-0-0, XX-X-0, XX-0X-0 and XA-1S-3
November 2007 XX-0-0, XX-X-0, XX-0X-0, XX-0X-0 and XA-May 2008 XX-0X-0, XX-0X-0,
XX-0-0, XX-0, X-M and November 2008 XX-0X-0, XX-0X-0, XX-0-0, XK-1 and XL-2 May
2009 XX-0X-0, XX-0X-0, XX-0-0, XX-0 and XK-2 November 2009 XX-0X-0, XX-0X-0,
XX-0-0, XX-0 and XJ-2 May 2010 XX-0X-0, XX-0X-0, XX-XX, XX-0-0, XX-0,
XNovemberd20102 XA-1A-10, XA-1S-10, XX-0-0, XX-0-0, XX-0Xxxx00000 XX-0X-00,
XX-0X-00, XX-0-0 and XG-2 November 2011 XX-0X-00, XX-0X-00, XX-0-0, XX-0 and
XG-May 2012 XX-0X-00, XX-0X-00, XX-0-0, XX-0-0, XE-1November22012 XX-0X-00,
XX-0X-00, XX-0-0, XX-0 and XE-May 2013 XX-0X-00, XX-0X-00, XX-0-0, XX-X, XX-X,
Novembern2013-2 "Class XP Components": Each of Component XA-1-2, Component
XA-1-3, Component XA-1-4, Component XA-D-2, Component XA-D-3, Component XA-D-4,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XA-1A-10, Component XA-1A-11, Component XA-1A-12, Component XA-1A-13,
Component XX-0X-00, Xxxxxxxxx XX-0X-00, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1S-10, Component XA-1S-11,
Component XA-1S-12, Component XA-1S-13, Component XA-1S-14, Component XA-1S-15,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-2-4,
Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0, Component XA-AB, Component
XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XA-5-5, Component XA-5-6, Component XA-M, Component
XA-J, Component XB, Component XC, Component XD-1, Component XD-2, Component
XE-1, Component XE-2, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component
XG-2, Component XG-3, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx
XX-0, Component XJ-2, Component XK-1, Component XK-2, Component XL-1, Component
XL-2, Component XM and Component XN.
"Class XP Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of the Class XP Components, excluding the
Class XP Components for which the Class XP Crossover Date has previously passed.
"Class XP Pass-Through Rate": With respect to the initial
Distribution Date, 0.646% per annum, and for any subsequent Distribution Date,
the weighted average of the Class XP Strip Rates for the respective Class XP
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 XP Reference Rate": For any Distribution Date, the rate per
annum corresponding to such Distribution Date on Schedule VI attached hereto.
"Class XP Strip Rate": With respect to each of the Class XP
Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class XP Component
Crossover Date, with respect to each Class XP Component, the lesser of (I) the
Weighted Average Net Mortgage Pass-Through Rate for such Distribution Date and
(II) the Class XP Reference Rate for such Distribution Date minus (z) the
Pass-Through Rate for the Corresponding Certificates (provided that in no event
shall any Class XP Strip Rate be less than zero), and (ii) for any Distribution
Date occurring after the related Class XP Component Crossover Date, 0% per
annum.
"Class XS Certificate": Any one of the Certificates with a "Class
XS" designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class XS Notional Amount": As of any date of determination, the sum
of the then Component Notional Amounts of all of the Components.
"Class XS Pass-Through Rate": With respect to the initial
Distribution Date, 0.048% per annum, and for any subsequent Distribution Date,
the weighted average of the Class XS 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 XS Strip Rate": With respect to any Class of Components
(other than any Class XP Component) for any Distribution Date, a rate per annum
equal to (i) the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date, minus (ii) the Pass-Through Rate for the Corresponding
Certificates. In the case of any Class XP Component (i) for any Distribution
Date occurring on or before the related Class XP Component Crossover Date, (x)
the Weighted Average Net Mortgage Pass-Through Rate for such Distribution Date
minus (y) the sum of the Pass-Through Rate for the Corresponding Certificates
for such Distribution Date and the Class XP Strip Rate for such Component for
such Distribution Date, and (ii) for any Distribution Date occurring after the
related Class XP Component Crossover Date, a rate per annum equal to (x) the
Weighted Average Net Mortgage Pass-Through Rate for such Distribution Date,
minus (y) the Pass-Through Rate for the Corresponding Certificates (provided
that in no event shall any Class XS Strip Rate be less than zero).
"Clearstream": Clearstream Banking Luxembourg, a division of
Clearstream International, societe anonyme.
"Closing Date": October 30, 2006.
"CMSA": The Commercial Mortgage Securities Association, or any
association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, certificateholders, issuers,
placement agents and underwriters generally involved in the commercial mortgage
loan securitization industry, which is the principal such association or
organization in the commercial mortgage loan securitization industry and whose
principal purpose is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer, the Serviced Companion Loan Noteholders and the Controlling Class
Representative.
"CMSA Bond Level File": A data file substantially in the form of,
and containing the information called for in, the downloadable form of the "Bond
Level File" 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 promulgated as recommended 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 "Bond Level File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File": The data file substantially in the
form of, and containing the information called for in, the downloadable form of
the "CMSA Collateral Summary File" 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 promulgated
as recommended 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 Trustee.
"CMSA Financial File": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA
Financial File" available as of the Closing Date on the CMSA Website, or such
other final form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended 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 Servicer or the Special
Servicer, as applicable. The initial data for this report shall be provided by
each Mortgage Loan Seller.
"CMSA Loan Periodic Update File": The monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "CMSA Loan Periodic Update File" available as of the Closing Date on
the CMSA Website, or such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as recommended 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, is
reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable, and the Trustee and, provided, that each CMSA Loan Periodic Update
File shall be accompanied by a Advance Recovery Report, if such report is
required for a particular month, and all references herein to "CMSA Loan
Periodic Update File" shall be construed accordingly.
"CMSA Loan Setup File": The report substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA
Loan Setup File" available as of the Closing Date on the CMSA Website, or such
other final form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended 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 Servicer or the Special
Servicer, as applicable, and the Trustee.
"CMSA Property File": The monthly report substantially in the form
of, and containing the information called for, in the downloadable form of the
"CMSA Property File" available as of the Closing Date on the CMSA Website, or
such other final form for the presentation of such information and containing
such additional information as may from time to time be promulgated as
recommended 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 Master
Servicer or the Special Servicer, as applicable.
"CMSA Reporting Package": Collectively,
(a) the CMSA Reports;
(b) the following eleven supplemental reports: (i) Delinquent Loan
Status Report, (ii) Historical Loan Modification and Corrected Mortgage
Loan Report, (iii) Historical Liquidation Report, (iv) REO Status Report,
(v) Operating Statement Analysis Report, (vi) Comparative Financial Status
Report, (vii) Watch List, (viii) NOI Adjustment Worksheet, (ix) Loan Level
Reserve/LOC Report, (x) Reconciliation of Funds Report and (xi) Total Loan
Report; and
(c) such other reports as the CMSA may designate in the future and
any additional information as the Master Servicer, Special Servicer and
the Trustee may from time to time agree.
In addition, the CMSA Reporting Package shall include the Advance
Recovery Report, if such report is required for a particular month.
"CMSA Reports": Reports substantially in the forms of the CMSA
standard reporting package inclusive of the CMSA Loan Setup File, the CMSA Loan
Periodic Update File, the CMSA Property File, the CMSA Financial File, the CMSA
Special Servicer Defaulted Loan File, the CMSA Bond Level File and the CMSA
Collateral Summary File.
"CMSA Special Servicer Defaulted Loan File:" The report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Special Servicer Loan File" available as of the
Closing Date on the CMSA Website, or such other final form for the presentation
of such information and containing such additional information as may from time
to time be promulgated as recommended 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.
"CMSA Supplemental Servicer Reports": The Delinquent Loan Status
Report, the Historical Loan Modification and Corrected Mortgage Loan Report, the
Historical Liquidation Report, the REO Status Report, the Watch List, the NOI
Adjustment Worksheet, the Comparative Financial Status Report, the Operating
Statement Analysis Report, the Loan Level Reserve/LOC Report, the Advance
Recovery Report and the Total Loan Report.
"CMSA Website": The CMSA's Website located at "xxx.xxxx.xxx" or such
other primary website as the CMSA may establish for dissemination of its report
forms.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, any successor statute thereto, and any temporary or final regulations of
the United States Department of the Treasury promulgated pursuant thereto.
"Co-Lender Agreement": (i) with respect to the Spectrum Centre Whole
Loan, the Spectrum Centre Intercreditor Agreement, (ii) with respect to the Ala
Moana Portfolio Whole Loan, the Ala Moana Portfolio Intercreditor Agreement,
(iii) with respect to the Two Gateway Whole Loan, the Two Gateway Intercreditor
Agreement, (iv) with respect to the 0000 Xxxxxx Xxxxxx Whole Loan, the 0000
Xxxxxx Xxxxxx Intercreditor Agreement, (v) with respect to the ShopKo Portfolio
Whole Loan, the ShopKo Portfolio Intercreditor Agreement and (vi) with respect
to the Fair Lakes Office Portfolio Whole Loan, the Fair Lakes Office Portfolio
Intercreditor Agreement, in each case, as applicable and as the context may
require.
"Collection Account": Collectively the Collection Account-Capmark
and the Collection Account-Wachovia.
"Collection Account-Capmark": The trust account or accounts created
and maintained by the General Master Servicer pursuant to Section 3.05(a), which
shall be entitled "Capmark Finance Inc., for the benefit of LaSalle Bank
National Association, as Trustee, in trust for Holders of Deutsche Mortgage &
Asset Receiving Corporation, CD 2006-CD3 Commercial Mortgage Pass-Through
Certificates, Collection Account" and which must be an Eligible Account.
"Collection Account-Wachovia": The trust account or accounts created
and maintained by Master Servicer No. 2 pursuant to Section 3.05(a), which shall
be entitled "Wachovia Bank, National Association, for the benefit of LaSalle
Bank National Association, as Trustee, in trust for Holders of Deutsche Mortgage
& Asset Receiving Corporation, CD 2006-CD3 Commercial Mortgage Pass-Through
Certificates, Collection Account" and which must be an Eligible Account.
"Collection Period": With respect to any Distribution Date and each
Mortgage Loan, the period that begins immediately following the Determination
Date in the calendar month preceding the month in which such Distribution Date
occurs (or, in the case of the Distribution Date occurring in November 2006, on
the day after the Cut-off Date) and ending at the close of business on the
Determination Date in the calendar month in which such Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Companion Loan": Any of the B Loans or Pari Passu Companion Loans,
as applicable and as the context may require.
"Companion Loan Noteholder": A holder of a Companion Loan.
"Companion Loan Securities": With respect to any Serviced Companion
Loan that has been included in a securitization, the securities created pursuant
to the related Serviced Companion Loan Securitization Agreement.
"Comparative Financial Status Report": A report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Comparative Financial Status 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
promulgated as recommended 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 Servicer or the Special Servicer, as
applicable. In connection with preparing the CMSA Comparative Financial Status
Report, the Master Servicer shall process (a) interim financial statements
beginning with interim financial statements for the fiscal quarter ending
December of 2006, and (b) annual financial statements beginning with annual
financial statements for the 2006 fiscal year.
"Component": Each of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XA-1-3, Component XA-1-4, omponent XA-D-1, Component XA-D-2, Component XA-D-3,
Component XA-D-4, Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XA-1A-10, Component XA-1A-11,
Component XA-1A-12, Component XA-1A-13, Component XX-0X-00, Xxxxxxxxx XX-0X-00,
Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0, Xxxxxxxxx XX-0X-0,
Component XX-0X-0, Xxxxxxxxx XX-0X-0, Xxxxxxxxx XX-0X-0, Component XX-0X-0,
Xxxxxxxxx XX-0X-0, Component XA-1S-10, Component XA-1S-11, Component XA-1S-12,
Component XA-1S-13, Component XA-1S-14, Component XA-1S-15, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-2-4, Component XX-0-0,
Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0, Component XA-AB, Component XX-0-0, Xxxxxxxxx
XX-0-0, Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-5-5, Component XA-5-6, Component XA-M, Component XA-J, Component
XB, Component XC, Component XD-1, Component XD-2, Component XE-1, Component
XE-2, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XG-2, Component
XG-3, Component XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component
XJ-2, Component XK-1, Component XK-2, Component XL, Component XM, Component XN,
Component XO, Component XP, Component XQ and Component XS.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier REMIC Principal
Balance of its Corresponding Lower-Tier REMIC Regular Interest.
"Component XA-1-1": One of the 82 components of the Class XS
Certificates having a Component Notional Amount equal to the then current
Lower-Tier REMIC Principal Balance of Lower-Tier REMIC Regular Interest LA-1-1
as of any date of determination.
"Component XA-1-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1-2 as of any date of
determination.
"Component XA-1-3": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1-3 as of any date of
determination.
"Component XA-1-4": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1-4 as of any date of
determination.
"Component XA-D-1": One of the 82 components of the Class XS
Certificates having a Component Notional Amount equal to the then current
Lower-Tier REMIC Principal Balance of Lower-Tier REMIC Regular Interest LA-D-1
as of any date of determination.
"Component XA-D-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-D-2 as of any date of
determination.
"Component XA-D-3": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-D-3 as of any date of
determination.
"Component XA-D-4": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-D-4 as of any date of
determination.
"Component XA-1A-1": One of the 82 components of the Class XS
Certificates having a Component Notional Amount equal to the then current
Lower-Tier REMIC Principal Balance of Lower-Tier REMIC Regular Interest LA-1A-1
as of any date of determination.
"Component XA-1A-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-2 as of any date of
determination.
"Component XA-1A-3": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-3 as of any date of
determination.
"Component XA-1A-4": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-4 as of any date of
determination.
"Component XA-1A-5": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-5 as of any date of
determination.
"Component XA-1A-6": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-6 as of any date of
determination.
"Component XA-1A-7": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-7 as of any date of
determination.
"Component XA-1A-8": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-8 as of any date of
determination.
"Component XA-1A-9": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-9 as of any date of
determination.
"Component XA-1A-10": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-10 as of any date of
determination.
"Component XA-1A-11": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-11 as of any date of
determination.
"Component XA-1A-12": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-12 as of any date of
determination.
"Component XA-1A-13": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-13 as of any date of
determination.
"Component XA-1A-14": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-14 as of any date of
determination.
"Component XA-1A-15": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1A-15 as of any date of
determination.
"Component XA-1S-1": One of the 82 components of the Class XS
Certificates having a Component Notional Amount equal to the then current
Lower-Tier REMIC Principal Balance of Lower-Tier REMIC Regular Interest LA-1S-1
as of any date of determination.
"Component XA-1S-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-2 as of any date of
determination.
"Component XA-1S-3": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-3 as of any date of
determination.
"Component XA-1S-4": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-4 as of any date of
determination.
"Component XA-1S-5": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-5 as of any date of
determination.
"Component XA-1S-6": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-6 as of any date of
determination.
"Component XA-1S-7": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-7 as of any date of
determination.
"Component XA-1S-8": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-8 as of any date of
determination.
"Component XA-1S-9": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-9 as of any date of
determination.
"Component XA-1S-10": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-10 as of any date of
determination.
"Component XA-1S-11": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-11 as of any date of
determination.
"Component XA-1S-12": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-12 as of any date of
determination.
"Component XA-1S-13": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-13 as of any date of
determination.
"Component XA-1S-14": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-14 as of any date of
determination.
"Component XA-1S-15": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-1S-15 as of any date of
determination.
"Component XA-2-1": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-2-1 as of any date of
determination.
"Component XA-2-2": O One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-2-2 as of any date of
determination.
"Component XA-2-3": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-2-3 as of any date of
determination.
"Component XA-2-4": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-2-4 as of any date of
determination.
"Component XA-2-5": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-2-5 as of any date of
determination.
"Component XA-2-6": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-2-6 as of any date of
determination.
"Component XA-3": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-3-1 as of any date of
determination.
"Component XA-4-1": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-4-1 as of any date of
determination.
"Component XA-4-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-4-2 as of any date of
determination.
"Component XA-5-1": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-5-1 as of any date of
determination.
"Component XA-5-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-5-2 as of any date of
determination.
"Component XA-5-3": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-5-3 as of any date of
determination.
"Component XA-5-4": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-5-4 as of any date of
determination.
"Component XA-5-5": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-5-5 as of any date of
determination.
"Component XA-5-6": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-5-6 as of any date of
determination.
"Component XA-AB": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-AB as of any date of
determination.
"Component XA-J": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-J as of any date of
determination.
"Component XA-M": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LA-M as of any date of
determination.
"Component XB": O One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LB as of any date of determination.
"Component XC": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LC as of any date of determination.
"Component XD-1": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LD-1 as of any date of
determination.
"Component XD-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LD-2 as of any date of
determination.
"Component XE-1": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LE-1 as of any date of
determination.
"Component XE-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LE-2 as of any date of
determination.
"Component XF-1": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LF-1 as of any date of
determination.
"Component XF-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LF-2 as of any date of
determination.
"Component XG-1": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LG-1 as of any date of
determination.
"Component XG-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LG-2 as of any date of
determination.
"Component XG-3": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LG-3 as of any date of
determination.
"Component XH-1": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LH-1 as of any date of
determination.
"Component XH-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LH-2 as of any date of
determination.
"Component XH-3": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LH-3 as of any date of
determination.
"Component XJ-1": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LJ-1 as of any date of
determination.
"Component XJ-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LJ-2 as of any date of
determination.
"Component XK-1": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LK-1 as of any date of
determination.
"Component XK-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LK-2 as of any date of
determination.
"Component XL-1": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LL-1 as of any date of
determination.
"Component XL-2": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LL-2 as of any date of
determination.
"Component XM": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LM as of any date of determination.
"Component XN": One of the 82 components of the Class XS
Certificates and one of the 74 components of the Class XP Certificates having a
Component Notional Amount equal to the then current Lower-Tier REMIC Principal
Balance of Lower-Tier REMIC Regular Interest LN as of any date of determination.
"Component XO": One of the 82 components of the Class XS
Certificates having a Component Notional Amount equal to the then current
Lower-Tier REMIC Principal Balance of Lower-Tier REMIC Regular Interest LO as of
any date of determination.
"Component XP": One of the 78components of the Class XS Certificates
having a Component Notional Amount equal to the then current Lower-Tier REMIC
Principal Balance of Lower-Tier REMIC Regular Interest LP as of any date of
determination.
"Component XQ": One of the 82 components of the Class XS
Certificates and having a Component Notional Amount equal to the then current
Lower-Tier REMIC Principal Balance of Lower-Tier REMIC Regular Interest LQ as of
any date of determination.
"Component XS": One of the 82 components of the Class XS
Certificates and having a Component Notional Amount equal to the then current
Lower-Tier REMIC Principal Balance of Lower-Tier REMIC Regular Interest LS as of
any date of determination.
"Condemnation Proceeds": Any awards resulting from the full or
partial condemnation or any eminent domain proceeding or any conveyance in lieu
or in anticipation thereof with respect to a Mortgaged Property by or to any
governmental, quasi-governmental authority or private entity with condemnation
powers (other than amounts to be applied to the restoration, preservation or
repair of such Mortgaged Property or released to the related Borrower in
accordance with the terms of the applicable Mortgage Loan and, if applicable,
the terms of the applicable Serviced Whole Loan) or, if applicable, with respect
to the Mortgaged Property securing a Serviced Whole Loan, any portion of such
amounts payable to the holders of the applicable Serviced Whole Loan.
"Controlling Class": As of any date of determination, the Class of
Principal Balance Certificates with the latest alphabetical Class designation
that has a then-aggregate Certificate Balance at least equal to 25% of the
initial aggregate Certificate Balance of such Class of Principal Balance
Certificates as of the Closing Date. As of the Closing Date, the Controlling
Class will be the Class S Certificates. For purposes of determining the
Controlling Class, the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-5, Class A-1A and Class A-1S Certificates collectively will
be treated as one Class.
"Controlling Class Certificateholder": Each holder (or Beneficial
Owner, if applicable) of a Certificate of the Controlling Class as certified to
the Trustee from time to time by such holder (or Beneficial Owner).
"Controlling Class Representative": The Controlling Class
Certificateholder or its designee selected by more than 50% of the Controlling
Class Certificateholders, by Certificate Balance, as certified by the Trustee
from time to time; provided, however, that (i) absent such selection, or (ii)
until a Controlling Class Representative is so selected or (iii) upon receipt of
a notice from a majority of the Controlling Class Certificateholders, by
Certificate Balance, that a Controlling Class Representative is no longer
designated, the Controlling Class Certificateholder that owns the largest
aggregate Certificate Balance of the Controlling Class will be the Controlling
Class Representative; provided, further, that in order for the Trustee to
certify the status of the Controlling Class Representative, the Controlling
Class Representative must provide notice and certification of their holdings
through the Depository to the Trustee as to its status as Controlling Class
Representative upon which the Trustee shall use its best efforts to verify such
status. JER Investors Trust Inc. shall be the initial Controlling Class
Representative, without necessity of further notice or selection. With respect
to the Fair Lakes Office Portfolio Whole Loan, any reference to the Controlling
Class Representative shall be deemed to be referring to the Xxxxxxx Xxxxx
2006-GG8 Controlling Class Representative.
"Corporate Trust Office": The offices of the Trustee located at 000
X. XxXxxxx Xx., Xxxxxxx, XX 00000, Attn: Global Securities and Trust Services
Group - CD 2006-CD3, or the principal trust office of any successor Trustee
qualified and appointed pursuant to Section 8.08.
"Corrected Mortgage Loan": As defined under the definition of
Specially Serviced Loan.
"Corresponding Certificate": As defined in the Preliminary Statement
with respect to any Corresponding Lower-Tier Regular Interest.
"Corresponding Component": As defined in the Preliminary Statement
with respect to any Corresponding Certificate or any Corresponding Lower-Tier
Regular Interest.
"Corresponding Lower-Tier Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Corresponding Certificates.
"Cross-Collateralized Mortgage Loans": Any two or more Mortgage
Loans listed on the Mortgage Loan Schedule that are cross-collateralized with
each other.
"Cross-over Date": Means the Distribution Date on which the
Certificate Balance of each Class of Certificates other than the Class A-1,
Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5, Class A-1A
and A-1S Certificates have been reduced to zero.
"Custodial Agreement": The Custodial Agreement, if any, from time to
time in effect between the Custodian named therein and the Trustee, in the form
agreed to by the Trustee and the Custodian, as the same may be amended or
modified from time to time in accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 3.21 and,
unless the Trustee is Custodian, named pursuant to any Custodial Agreement. If a
Custodian is not so appointed, then the Custodian shall be the Trustee. The
Custodian may (but need not) be the Trustee or the Master Servicer or any
Affiliate of the Trustee or the Master Servicer, but may not be the Depositor,
any Mortgage Loan Seller or any Affiliate thereof.
"Cut-off Date": With respect to each Mortgage Loan or Serviced Whole
Loan, the payment date for such Mortgage Loan or Serviced Whole Loan occurring
in October 2006.
"DBS": Deutsche Bank Securities Inc.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan or
Serviced Whole Loan as of any date of determination and for any period, the
ratio calculated by dividing the net operating income or net cash flow, as
applicable, of the related Mortgaged Property or Mortgaged Properties, as the
case may be, for the most recently ended 12-month trailing or one-year period
for which data is available from the related Borrower (or year-to-date until
such time that data for the trailing 12-month period is available), before
payment of any scheduled payments of principal and interest on such Mortgage
Loan or Serviced Whole Loan but after funding of required reserves and
"normalized" by the Master Servicer pursuant to Section 3.13, by the annual debt
service required by such Mortgage Loan or Serviced Whole Loan. Annual debt
service shall be calculated by multiplying the Monthly Payment in effect on such
date of determination for such Mortgage Loan or Serviced Whole Loan by 12 (or
such fewer number of months for which related information is available).
"Default Interest": With respect to any Mortgage Loan or Serviced
Companion Loan, interest accrued on such Mortgage Loan or Serviced Companion
Loan at the excess of (i) the Default Rate over (ii) the related Mortgage Rate.
"Default Rate": With respect to each Mortgage Loan or Serviced
Companion Loan, the per annum rate at which interest accrues on such Mortgage
Loan or Serviced Companion Loan following any event of default on such Mortgage
Loan or Serviced Companion Loan, including a default in the payment of a Monthly
Payment or a Balloon Payment.
"Defaulted Mortgage Loan": A Mortgage Loan or Serviced Whole Loan
which is delinquent at least 60 days in respect of its Monthly Payments or more
than 30 days 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 Loan Documents and without regard to any acceleration
of payments under the related Mortgage Loan or Serviced Whole Loan.
"Defeasance Account": As defined in Section 3.30(j).
"Delinquency": Any failure of a Borrower to make a scheduled Monthly
Payment or Balloon Payment on a Due Date.
"Delinquent Loan Status Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Delinquent Loan Status 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 promulgated
as recommended 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 "Delinquent Loan Status Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicer or the Special Servicer, as applicable.
"Denomination": As defined in Section 5.01(a).
"Depositor": Deutsche Mortgage & Asset Receiving Corporation, a
Delaware corporation, and its successors and assigns.
"Depository": The Depository Trust Company or a successor appointed
by the Certificate Registrar (which appointment shall be at the direction of the
Depositor if the Depositor is legally able to do so).
"Depository Participant": A Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Determination Date": With respect to any Distribution Date, the
11th day of each month or, if such 11th day is not a Business Day, the next
succeeding Business Day, commencing in November 2006.
"Directing Certificateholder": (a) with respect to any Mortgage
Loan, other than any Serviced Loan Combination, the Controlling Class
Representative; (b) with respect to the Spectrum Centre Whole Loan, (i) as to
certain matters set forth in Section 3.34 herein and as provided in the Spectrum
Centre Intercreditor Agreement as to which the Spectrum Centre B Loan Noteholder
is entitled to consent or approve, the Spectrum Centre B Loan Noteholder and
(ii) as to all other matters, the Controlling Class Representative, (c) with
respect to the Ala Moana Portfolio Whole Loan, the Ala Moana Portfolio
Controlling Holders, (d) with respect to the Two Gateway Whole Loan, (i) so long
as no Two Gateway Control Appraisal Event exists, the Two Gateway B Noteholder,
and (ii) so long as a Two Gateway Control Appraisal Event exists, the
Controlling Class Representative, (e) with respect to the 0000 Xxxxxx Xxxxxx
Whole Loan, (i) so long as no 0000 Xxxxxx Xxxxxx Control Appraisal Event exists,
the 0000 Xxxxxx Xxxxxx X Noteholder, and (ii) so long as a 0000 Xxxxxx Xxxxxx
Control Appraisal Event exists, the Controlling Class Representative, (f) with
respect to the ShopKo Portfolio Whole Loan, the ShopKo Portfolio Required
Holders and (g) with respect to the Fair Lakes Office Portfolio Whole Loan, the
Xxxxxxx Xxxxx 2006-GG8 Controlling Class Representative. In the case where any
Serviced Companion Loan Noteholder appoints an "operating advisor" in accordance
with the related Co-Lender Agreement, then, in such cases, "Directing
Certificateholder" shall be deemed to mean such operating advisor appointed
under the related Co-Lender Agreement.
"Directly Operate": With respect to any REO Property (other than REO
Property related to the ShopKo Portfolio Mortgage Loan, the servicing which is
governed by the CGCMT 2006-C4 Pooling and Servicing Agreement), 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 in the ordinary course of a trade or business,
or any use of such REO Property in a trade or business conducted by the Trust
Fund, or the performance of any construction work on the REO Property other than
through an Independent Contractor; provided, however, that the Special Servicer,
on behalf of the Trust Fund, shall not be considered to Directly Operate an REO
Property solely because the Special Servicer, on behalf of the Trust Fund,
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 l.856-4(b)(5)(ii).
"Disclosure Documents": Collectively, the Time of Sale Information,
the Prospectus and the Private Placement Memorandum.
"Disqualified Non-U.S. Person": With respect to a Class R or Class
LR Certificate, (A) any Non-U.S. Person or agent thereof other than (i) a
Non-U.S. Person that holds the Class R or Class LR Certificate in connection
with the conduct of a trade or business within the United States and has
furnished the transferor and the Certificate Registrar with an effective IRS
Form W-8ECI (or applicable successor Form promulgated by the IRS for the purpose
of providing and certifying the information provided on Form W-8ECI as of the
Closing Date) or (ii) a Non-U.S. Person that has delivered to both the
transferor and the Certificate Registrar an opinion of a nationally recognized
tax counsel to the effect that the transfer of the Class R or Class LR
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Class R or
Class LR Certificate will not be disregarded for federal income tax purposes,
(B) any domestic partnership for U.S. federal income tax purposes, one or more
of the direct or indirect partners (other than through a U.S. corporation) of
which is (or is permitted to be under the related partnership agreement) a
non-U.S. Person who is not described in clause (A)(i) or (ii) or (C) a U.S.
Person with respect to whom income on the Class R or Class LR Certificate is
attributable to a fixed base or foreign permanent establishment, within the
meaning of an applicable income tax treaty, of such Person or any other U.S.
Person.
"Disqualified Organization": Any of (a) the United States, a State
or any political subdivision thereof, any possession of the United States, or
any agency or instrumentality of any of the foregoing (other than an
instrumentality that is a corporation if all of its activities are subject to
tax and a majority of its board of directors is not selected by any such
governmental unit), (b) a foreign government, International Organization (as
defined below) or agency or instrumentality of either of the foregoing, (c) an
organization that is exempt from tax imposed by Chapter 1 of the Code (including
the tax imposed by Code Section 511 on unrelated business taxable income) on any
excess inclusions (as defined in Code Section 860E(c)(1)) with respect to the
Class R or Class LR Certificates (except certain farmers' cooperatives described
in Code Section 521), (d) rural electric and telephone cooperatives described in
Code Section 1381(a)(2), or (e) any other Person so designated by the
Certificate Registrar based upon an Opinion of Counsel to the effect that any
Transfer to such Person may cause either Trust REMIC to be subject to tax or to
fail to qualify as a REMIC at any time that the Certificates are outstanding.
For the purposes of this definition, the terms "United States," "State" and
"International Organization" shall have the meanings set forth in Code Section
7701 or successor provisions.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account and the Grantor Trust Distribution
Account, all of which may be subaccounts of a single Eligible Account.
"Distribution Date": The fourth Business Day following the related
Determination Date, commencing in November 2006.
"Distribution Date Statement": As defined in Section 4.02(a).
"Do Not Hire List": The list, as may be updated at any time,
provided by the Depositor to the Master Servicer, Special Servicer and Trustee,
which lists certain parties identified by the Depositor as having failed to
comply with their respective obligations under Article X of this Agreement or as
having failed to comply with any similar Regulation AB reporting requirements
under any pooling and servicing agreement relating to any other series of
certificates offered by the Depositor.
"Due Date": With respect to (i) any Mortgage Loan or Serviced Whole
Loan on or prior to its Maturity Date, the day of the month set forth in the
related Note on which each Monthly Payment thereon is scheduled to be first due
and (ii) any Mortgage Loan or Serviced Whole Loan after the Maturity Date
therefore or any REO Loan, the day of the month set forth in the related Note on
which each Monthly Payment on such Mortgage Loan or Serviced Whole Loan had been
scheduled to be first due.
"XXXXX": The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
"Early Termination Notice Date": Any date as of which the aggregate
Stated Principal Balance of the Mortgage Loans is less than 1.0% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
"Eligible Account": Any of (i) (A) an account or accounts maintained
with a depository institution or trust company the short term unsecured debt
obligations or commercial paper of which are rated at least "A-1" by S&P and
"P-1" by Xxxxx'x (or, if applicable, the comparable rating from Fitch, with
respect to any class of Companion Loan Securities that is rated by Fitch), in
the case of accounts in which funds are held for 30 days or less or, in the case
of accounts in which funds are held for more than 30 days, the long term
unsecured debt obligations of which are rated at least "AA-" by S&P (or "A+ if
the related short-term rating is at least "A-1") and "Aa3" by Xxxxx'x (or, if
applicable, the comparable rating from Fitch, with respect to any class of
Companion Loan Securities that is rated by Fitch), or (B) as to which the
Trustee has received written confirmation from each of the Rating Agencies that
holding funds in such account would not cause any Rating Agency to qualify,
withdraw or downgrade any of its then-current ratings on the Certificates or, if
applicable, any Companion Loan Securities, (ii) a segregated trust account or
accounts maintained with a federal or state chartered depository institution or
trust company acting in its fiduciary capacity which, in the case of a state
chartered depository institution or trust company is subject to regulations
substantially similar to 12 C.F.R. ss. 9.10(b), and subject to supervision or
examination by federal and state authority or (iii) any other account that, as
evidenced by a written confirmation from each Rating Agency would not, in and of
itself, cause a downgrade, qualification or withdrawal of the then-current
ratings assigned to the Certificates or any Companion Loan Securities, which may
be an account maintained with the Trustee or the Master Servicer; provided that
references to Fitch and to the ratings thereof in clauses (i), (ii) and (iii) of
this definition shall not apply unless the account in question relates solely to
a Serviced Whole Loan that includes one or more Serviced Companion Loans or any
successor REO Loans with respect thereto that back Companion Loan Securities
rated by Fitch.
"Eligible Investor": Any of (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 Report": The environmental audit report or reports
with respect to each Mortgaged Property delivered to the Mortgage Loan Sellers
in connection with the related Mortgage Loan.
"ERISA": The Employee Retirement Income Security Act of 1974, as it
may be amended from time to time.
"Escrow Account": As defined in Section 3.04(b). Any Escrow Account
may be a sub-account of the related Cash Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the Master
Servicer pursuant to the related Mortgage, Cash Collateral Account Agreement,
Lock-Box Agreement, Loan Agreement or other Loan Document for the account of
such Borrower for application toward the payment of taxes, insurance premiums,
assessments, environmental remediation and similar items in respect of the
related Mortgaged Property or related to the satisfaction of closing conditions
for the related Mortgage Loan or Serviced Whole Loan.
"Euroclear": The Euroclear System and its successors.
"Event of Default": A Master Servicer Event of Default or Special
Servicer Event of Default, as applicable.
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on and allocable to 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 Trust REMIC formed hereunder.
"Excess Liquidation Proceeds": With respect to any Mortgage Loan or
Serviced Companion Loan, the excess of (i) Net Liquidation Proceeds of such
Mortgage Loan or Serviced Companion Loan or related REO Property, over (ii) the
amount that would have been received if a principal payment and all other
amounts due in full had been made with respect to such Mortgage Loan or Serviced
Companion Loan on the Due Date immediately following the date on which such
proceeds were received.
"Excess Liquidation Proceeds Account": The segregated trust account
or sub-account created and maintained by the Trustee pursuant to Section 3.05(j)
in trust for the Certificateholders and, in the case of the Serviced Companion
Loans, the Serviced Companion Loan Noteholders, which shall be entitled "LaSalle
Bank National Association, as Trustee, in trust for Holders of Deutsche Mortgage
& Asset Receiving Corporation, CD 2006-CD3 Commercial Mortgage Pass-Through
Certificates and, if applicable, Serviced Companion Loan Noteholders, Excess
Liquidation Proceeds Account." The Excess Liquidation Proceeds Account must be
an Eligible Account or a sub-account of an Eligible Account and will be an asset
of the Lower-Tier REMIC.
"Excess Prepayment Interest Shortfall": With respect to the Mortgage
Loans in the Mortgage Pool, the aggregate Prepayment Interest Shortfalls with
respect to the Mortgage Pool in excess of the Servicer Prepayment Interest
Shortfall with respect to the Mortgage Pool.
"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.
"Exchange Act Report": A monthly Distribution Date Statement,
Comparative Financial Status Report, Delinquent Loan Status Report, Historical
Liquidation Report, Historical Loan Modification and corrected Mortgage Loan
Report, REO Status Report, Operating Statement Analysis Report, NOI Adjustment
Worksheet, Watch List, or Annual Compliance Report to be filed with the
Commission, under cover of the related form required by the Exchange Act.
"Fair Lakes Office Portfolio Companion Loan": As defined in the
Preliminary Statement.
"Fair Lakes Office Portfolio Companion Loan Noteholder": The holder
of the Note for the Fair Lakes Office Portfolio Companion Loan.
"Fair Lakes Office Portfolio Intercreditor Agreement": That certain
intercreditor and servicing agreement, dated as of July 12, 2006 by German
American Capital Corporation, as A-1 lender, and Xxxxxxx Xxxxx Commercial
Mortgage Capital, L.P., as A-2 lender, as from time to time amended,
supplemented or modified.
"Fair Lakes Office Portfolio Mortgage Loan": As defined in the
Preliminary Statement.
"Fair Lakes Office Portfolio Whole Loan": As defined in the
Preliminary Statement.
"FDIC": The Federal Deposit Insurance Corporation or any successor
thereto.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any
successor thereto.
"Final Recovery Determination": With respect to any Specially
Serviced Loan, REO Loan or any Mortgage Loan subject to repurchase by the
related Mortgage Loan Seller pursuant to Section 2.03(d) or, in the case of a
Whole Loan, subject to a purchase pursuant to the applicable Co-Lender Agreement
or any Mortgage Loan or Whole Loan subject to purchase pursuant to any related
mezzanine intercreditor agreement, the recovery of all Insurance Proceeds,
Liquidation Proceeds, the related Repurchase Price and other payments or
recoveries (including proceeds of the final sale of any REO Property) which the
Master Servicer (or in the case of a Specially Serviced Loan or REO Loan, the
Special Servicer), in its reasonable judgment as evidenced by a certificate of a
Servicing Officer delivered to the Trustee and the Custodian (and the Master
Servicer, if the certificate is from the Special Servicer), expects to be
finally recoverable. The Master Servicer shall maintain records, prepared by a
Servicing Officer, of each Final Recovery Determination until the earlier of (i)
its termination as a Master Servicer hereunder and the transfer of such records
to a successor servicer and (ii) five years following the termination of the
Trust Fund.
"Financial Market Publisher": Bloomberg Financial Service, Xxxxx,
LLC or Intex Solutions, Inc..
"Fitch": Fitch Ratings, Inc., or its successors.
"FNMA": The Federal National Mortgage Association or any successor
thereto.
"Form 8-K": A Current Report on Form 8-K under the Exchange Act or
such successor form as the Commission may specify from time to time.
"Form 8-K Disclosure Information": As defined in Section 10.9.
"GACC": German American Capital Corporation, in its capacity as a
Mortgage Loan Seller, and its successors.
"GACC Defeasance Rights and Obligations": As defined in Section
3.30(m).
"GACC Indemnification Agreement": The agreement dated as of October
23, 2006 from GACC to the Depositor and the Underwriters.
"GACC Purchase Agreement": The Mortgage Loan Purchase Agreement
dated and effective the Closing Date, between GACC and the Depositor.
"General Master Servicer": Capmark Finance Inc., a California
corporation, or any successor Master Servicer appointed herein.
"Global Certificates": The Class A-1, Class A-1D, Class A-2, Class
A-3, Class A-AB, Class A-4, Class A-5, Class A-1A, Class A-1S, Class XS, Class
XP, 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 O, Class P, Class Q
and Class S Certificates.
"Xxxxxxx Xxxxx 2006-GG8 Controlling Class Representative": The
controlling class representative appointed under and in accordance with the
pooling and servicing agreement related to the Xxxxxxx Sachs Mortgage Securities
Corporation II Commercial Mortgage Pass-Through Certificates, Series 2006-GG8.
"Grantor Trust": As defined in the Preliminary Statement herein.
"Grantor Trust Distribution Account": The segregated trust account
or sub-account created and maintained by the Trustee pursuant to Section
3.05(c), which shall be entitled "LaSalle Bank National Association, as Trustee,
in trust for Holders of Deutsche Mortgage & Asset Receiving Corporation, CD
2006-CD3 Commercial Mortgage Pass Through Certificates, Grantor Trust
Distribution Account," and which must be an Eligible Account or a sub-account of
an Eligible Account. The Grantor Trust Distribution Account shall not be an
asset of either Trust REMIC .
"Grantor Trust Provisions": Subpart E of Part I of subchapter J of
the Code and Treasury Regulations Section 301.7701-4(c).
"Group 1 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan" shall mean any Mortgage Loan identified on
the Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), 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.
"Historical Liquidation Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Historical Liquidation 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 promulgated
as recommended 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 Servicer or the Special Servicer, as applicable.
"Historical Loan Modification and Corrected Mortgage Loan Report": A
report substantially in the form of, and containing the information called for
in, the downloadable form of the "Historical Loan Modification and Corrected
Mortgage Loan 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 promulgated as recommended 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 Servicer or the Special Servicer, as applicable.
"Holder": With respect to any Certificate, a Certificateholder; with
respect to any Lower-Tier Regular Interest, the Trustee.
"Indemnification Agreements": Each of the GACC Indemnification
Agreement, BCRE Indemnification Agreement, CFI Indemnification Agreement and
CGMRC Indemnification Agreement.
"Indemnified Party": As defined in Section 8.05(d), or Section
8.05(h), as the context requires.
"Indemnifying Party": As defined in Section 8.05(d), or Section
8.05(h), as the context requires.
"Independent": When used with respect to any specified Person, any
such Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Depositor, the Trustee, the Master
Servicer, the Special Servicer, the Directing Holder, any Borrower or Manager or
any Affiliate thereof, and (ii) is not connected with any such Person thereof as
an officer, employee, promoter, underwriter, trustee, partner, director or
Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests 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 or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Master Servicer nor the Special Servicer shall
be considered to be an Independent Contractor under the definition in this
clause (i) unless an Opinion of Counsel (at the expense of the party seeking to
be deemed an Independent Contractor) addressed to the Master Servicer or the
Special Servicer, as applicable, and the Trustee has been delivered to the
Trustee to that effect) or (ii) any other Person (including the Master Servicer
and the Special Servicer) if the Master Servicer or the Special Servicer, as
applicable, on behalf of itself and the Trustee has received an Opinion of
Counsel (at the expense of the party seeking to be deemed an Independent
Contractor) 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 (determined without regard to the
exception applicable for purposes of Section 860D(a) of the Code) or cause any
income realized in respect of such REO Property to fail to qualify as Rents from
Real Property (provided that such income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully
registered physical form without interest coupons.
"Initial Purchasers": DBS and CGM and their respective successors in
interest.
"Initial Rate": The stated Mortgage Rate with respect to an ARD
Loan.
"Initial Resolution Period": As defined in Section 2.03(d).
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(l), (2), (3) or (7) of Regulation D promulgated
under the Act, or an entity in which all the equity owners meet such
requirements.
"Insurance Proceeds": Proceeds of any fire and hazard insurance
policy, title policy or other insurance policy relating to a Mortgage Loan or
Serviced Whole Loan (including any amounts paid by the Master Servicer pursuant
to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date and
any Class of Certificates (other than the Class T, Class R and Class LR
Certificates), an amount equal to interest for the related Interest Accrual
Period at the Pass-Through Rate for such Class on the related Certificate
Balance or Notional Balance, as applicable, outstanding immediately prior to
such Distribution Date minus the amount of any Excess Prepayment Interest
Shortfall, allocated to such Class with respect to such Distribution Date.
Calculations of interest due in respect of the Certificates shall be made on the
basis of a 360-day year consisting of twelve 30-day months.
"Interest Accrual Period": With respect to any Distribution Date,
the calendar month immediately preceding the month in which such Distribution
Date occurs.
"Interest Reserve Account": The segregated trust account or
sub-account created and maintained by the Trustee pursuant to Section 3.05(f),
which shall be entitled "LaSalle Bank National Association, as Trustee, in trust
for Holders of Deutsche Mortgage & Asset Receiving Corporation, CD 2006-CD3
Mortgage Pass-Through Certificates, Interest Reserve Account" and which must be
an Eligible Account or a sub-account of an Eligible Account. The Interest
Reserve Account shall be an asset of the Lower-Tier REMIC.
"Interested Person": As of any date of determination, the Depositor,
the Master Servicer, Special Servicer, the Trustee, any Holder of a Certificate,
any Borrower, any Manager, any Independent Contractor engaged by the Special
Servicer pursuant to Section 3.17, or any Person known to a Responsible Officer
of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section
5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"JER": X.X. Xxxxxx Company, Inc., in its capacity as Special
Servicer under this Agreement.
"Late Collections": With respect to any Mortgage Loan or Serviced
Whole Loan, all amounts received thereon during any Collection Period (or the
related grace period), whether as payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or otherwise, which represent late payments or
collections of principal or interest due in respect of such Mortgage Loan or
Serviced Whole Loan (without regard to any acceleration of amounts due
thereunder by reason of default) on a Due Date in a previous Collection Period
and not previously recovered. With respect to any REO Loan, all amounts received
in connection with the related REO Property during any Collection Period
(including any grace period applicable under the original Mortgage Loan or
Serviced Whole Loan), whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Proceeds 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 Serviced Whole Loan (without regard to
any acceleration of amounts due under the predecessor Mortgage Loan or Serviced
Whole Loan by reason of default) on a Due Date in a previous Collection Period
and not previously recovered. The term "Late Collections" shall specifically
exclude Penalty Charges.
"Liquidation Expenses": All customary, reasonable and necessary "out
of pocket" costs and expenses incurred by the Master Servicer, the Special
Servicer and the Trustee in connection with the liquidation of any Mortgage Loan
or Serviced Whole Loan or the liquidation of an REO Property or the sale of any
Mortgage Loan pursuant to Section 3.18 or Section 9.01 (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 Loan or REO Loan or with respect to each
Mortgage Loan as specified in clause (b) of this definition, in each case as to
which the Special Servicer obtains a full, partial or discounted payoff from the
related Borrower or Mortgage Loan Seller, as applicable, or any Liquidation
Proceeds with respect thereto (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 the
net Liquidation Proceeds (net of the related costs and expenses associated with
the related liquidation) related to such liquidated or repurchased Mortgage Loan
or Specially Serviced Loan, as the case may be; provided, however, that (a) no
such fee shall be payable with respect to clauses (iii) or (v) of the definition
of Liquidation Proceeds (except, in the case of clause (iii), to the extent a
Liquidation Fee is required to be paid pursuant to Section 3.18 hereof); no such
fee shall be payable in the case of clause (vi) of the definition of Liquidation
Proceeds in the case of any existing mezzanine indebtedness or any mezzanine
indebtedness that may exist on a future date, unless the purchase of the related
Mortgage Loan by a mezzanine lender is more than 60 days following the date such
mezzanine lender could first exercise such purchase option; and no such fee
shall be payable in the case of clause (vii) of the definition of Liquidation
Proceeds except to the extent the related B Loan Holder purchases such Mortgage
Loan more than 60 days after the Mortgage Loan becomes a Specially Serviced
Whole Loan, and (b) in the case of a final disposition consisting of the
repurchase of a Mortgage Loan (or related REO Loan) by the applicable Mortgage
Loan Seller pursuant to Section 2.03(d), no such fee shall be paid by a Mortgage
Loan Seller or be due to the Special Servicer if the applicable Mortgage Loan
Seller repurchases such Mortgage Loan within the time period set forth in
Section 2.03(d) (and giving effect to any applicable extension period beyond the
end of the Initial Resolution Period set forth in Section 2.03(d)) and, with
respect to any Serviced Companion Loan, no such fee shall be due to the Special
Servicer under this Agreement in connection with a repurchase of such Serviced
Companion Loan under the applicable Serviced Companion Loan Securitization
Agreement.
"Liquidation Fee Rate": A rate equal to 1.0% (other than with
respect to the Ala Moana Portfolio Whole Loan and any related REO Property) and
a rate equal to 0.25% for the Ala Moana Portfolio Whole Loan and any related REO
Property.
"Liquidation Proceeds": Cash amounts received by or paid to the
Master Servicer or the Special Servicer in connection with: (i) the liquidation
of a Mortgaged Property or other collateral constituting security for a
Defaulted Mortgage Loan, through trustee's sale, foreclosure sale, REO
Disposition or otherwise, exclusive of any portion thereof required to be
released to the related Borrower in accordance with applicable law and the terms
and conditions of the related Note and Mortgage; (ii) the realization upon any
deficiency judgment obtained against a Borrower; (iii) the purchase of a
Defaulted Mortgage Loan by the Directing Certificateholder or the Special
Servicer pursuant to Section 3.18; (iv) the repurchase of a Mortgage Loan (or
related REO Loan) by the applicable Mortgage Loan Seller pursuant to Section
2.03(d); (v) the purchase of all the Mortgage Loans and all property acquired in
respect of any Mortgage Loan by the Sole Certificateholder, the
Certificateholder owning a majority of the Percentage Interests in the
Controlling Class, the Special Servicer or the Master Servicer pursuant to
Section 9.01; (vi) in connection with any existing mezzanine indebtedness or any
mezzanine indebtedness that may exist on a future date, the purchase of the
related Mortgage Loan by a mezzanine lender; (vii) in the case of any Serviced
Whole Loan, the purchase of the related Mortgage Loan by a related Serviced B
Loan Noteholder, or the applicable designee, as applicable, pursuant to the
related Co-Lender Agreement; or (viii) except for purposes of Section 3.12(c)
and (d), the transfer of any Loss of Value Payments from the Loss of Value
Reserve Fund to the Collection Account .
"Litigation Control": As defined in Section 3.35.
"Loan Agreement": With respect to any Mortgage Loan or Serviced
Whole Loan, the loan agreement, if any, between the related Originator and the
Borrower, pursuant to which such Mortgage Loan was made.
"Loan Documents": With respect to any Mortgage Loan or Serviced
Whole Loan, the documents executed or delivered in connection with the
origination of such Mortgage Loan or Serviced Whole Loan or subsequently added
to the related Mortgage File.
"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 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loan that are
Group 2 Mortgage Loans and any successor REO Loans with respect thereto.
"Loan Group 2 Interest Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Available Funds representing
interest collections attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to any
Distribution Date, that portion, if any, of the Principal Distribution Amount
attributable to Loan Group 2.
"Loan Level Reserve/LOC Report": A report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Loan Level Reserve/LOC Report" available as of the Closing Date on the CMSA
Website, or such other final form for the presentation of such information and
containing such additional information as may from time to time be promulgated
as recommended 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 Servicer or the Special Servicer, as applicable.
"Loan Number": With respect to any Mortgage Loan, the loan number by
which such Mortgage Loan was identified on the books and records of the
Depositor or any sub-servicer for the Depositor, as set forth in the Mortgage
Loan Schedule.
"Loan Seller Sub-Servicer": A Servicing Function Participant or
Sub-Servicer required to be retained by either Master Servicer or the Special
Servicer by a Mortgage Loan Seller, as listed on Exhibit W hereto.
"Lock-Box Account": With respect to any Mortgaged Property, if
applicable, any account created pursuant to the related Loan Documents to
receive revenues therefrom. Any Lock-Box Account shall be beneficially owned for
federal income tax purposes by the Person who is entitled to receive the
reinvestment income or gain thereon in accordance with the terms and provisions
of the related Mortgage Loan or Serviced Whole Loan and Section 3.07, which
Person shall be taxed on all reinvestment income or gain thereon. The Master
Servicer shall be permitted to make withdrawals therefrom for deposit into the
related Cash Collateral Accounts in accordance with the terms of the related
Mortgage Loan.
"Lock-Box Agreement": With respect to any Mortgage Loan or Serviced
Whole Loan, the lock-box agreement, if any, between the related Originator and
the Borrower, pursuant to which the related Lock-Box Account, if any, may have
been established.
"Loss of Value Payment": As defined in Section 2.03(d).
"Loss of Value Reserve Fund": The "outside reserve fund" (within the
meaning of Treasury Regulations Section 1.860G-2(h)) designated as such pursuant
to Section 3.05(e) of this Agreement. The Loss of Value Reserve Fund will be
part of the Trust Fund but not part of the Grantor Trust or either Trust REMIC .
"Lower-Tier Distribution Account": The segregated trust account or
sub-account created and maintained by the Trustee pursuant to Section 3.05(b),
which shall be entitled "LaSalle Bank National Association, as Trustee, in trust
for Holders of Deutsche Mortgage & Asset Receiving Corporation, CD 2006-CD3
Commercial Mortgage Pass-Through Certificates, Lower-Tier Distribution Account"
and which must be an Eligible Account or a sub-account of an Eligible Account.
The Lower-Tier Distribution Account shall be an asset of the Lower-Tier REMIC.
"Lower-Tier Distribution Amount": As defined in Section 4.01(a)(ii).
"Lower-Tier Principal Balance": With respect to any Class of
Lower-Tier Regular Interest, initially will equal the original principal balance
set forth in the Preliminary Statement herein, and from time to time will equal
such amount reduced by in the case of any Lower-Tier Regular Interest, the
amount of distributions of the Lower-Tier Distribution Amount allocable to
principal and Realized Losses allocable thereto in all prior periods as
described in Section 4.01(a)(ii) and 4.01(f) hereof.
"Lower-Tier Regular Interests": Any of the separate non-certificated
beneficial ownership interests in the Lower-Tier REMIC issued hereunder and
designated as a "regular interest" in the Lower-Tier REMIC, as described in the
Preliminary Statement hereto, which (i) has a "latest possible maturity date,"
within the meaning of Treasury Regulations Section 1.860G-1(a), that is the
Rated Final Distribution Date and (ii) is entitled to the distributions in the
amounts and at the times specified in Section 4.01(a)(ii) and Section 4.01(c).
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Excess Interest), amounts related
thereto held from time to time in the Collection Account and the Lower-Tier
Distribution Account, the REO Property (to the extent of the Trust Fund's
interest therein), the REO Account (to the extent of the Trust Fund's interest
therein), the Interest Reserve Account, amounts held from time to time and the
Excess Liquidation Proceeds Account (to the extent of the Trust Fund's interest
therein) in respect thereof, and all other property included in the Trust Fund
that is not in the Upper-Tier REMIC or the Grantor Trust.
"Lower-Tier REMIC Remittance Rate": With respect to any Lower-Tier
Regular Interest for any Distribution Date, the Weighted Average Net Mortgage
Pass-Through Rate.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage Loan or
Serviced Whole Loan, the Management Agreement, if any, by and between the
Manager and the related Borrower, or any successor Management Agreement between
such parties.
"Manager": With respect to any Mortgage Loan or Serviced Whole Loan,
any property manager for the related Mortgaged Properties.
"Master Servicer Event of Default": As defined in Section 7.01(a).
"Master Servicer": Capmark Finance Inc., a California corporation,
with respect to all Mortgage Loans other than the Ala Moana Portfolio Mortgage
Loan and the Fair Lakes Office Portfolio Mortgage Loan, and Wachovia Bank,
National Association, a national banking association, with respect to the Ala
Moana Portfolio Mortgage Loan and the Fair Lakes Office Portfolio Mortgage Loan,
or any successor Master Servicer appointed as herein. References herein to
"Master Servicer" shall mean the General Master Servicer with respect to all
Mortgage Loans other than the Ala Moana Portfolio Mortgage Loan and the Fair
Lakes Office Portfolio Mortgage Loan and Master Servicer No. 2 with respect to
the Ala Moana Portfolio Mortgage Loan and the Fair Lakes Office Portfolio
Mortgage Loan.
"Master Servicing Fee": With respect to each Mortgage Loan and
Serviced Companion Loans and for any Distribution Date, an amount per Interest
Accrual Period equal to the product of (i) the respective Master Servicing Fee
Rate or, with respect to any Serviced Companion Loan, the respective Servicing
Fee Rate) and (ii) the Stated Principal Balance of such Mortgage Loan as of the
Due Date in the immediately preceding Collection Period (without giving effect
to payments of principal on such Mortgage Loan on such Due Date).
"Master Servicer No. 2": Wachovia Bank, National Association, a
national banking association, or any successor Master Servicer appointed herein.
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the
rate per annum set forth on Exhibit B-2.
"Material Breach": As defined in Section 2.03(d).
"Material Defect": As defined in Section 2.03(d).
"Maturity Date": With respect to any Mortgage Loan or Serviced
Companion Loan as of any date of determination, the date on which the last
payment of principal is due and payable under the related 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 Serviced Companion Loan by reason of default
thereunder or (ii) any grace period permitted by the related Note.
"Modified Mortgage Loan": Any Specially Serviced Loan which has been
modified by the Special Servicer pursuant to Section 3.30 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Mortgage Loan or Serviced Companion
Loan), including any reduction in the Monthly Payment;
(b) except as expressly contemplated by the related Mortgage,
results in a release of the lien of the Mortgage on any material portion
of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount not less than the fair market value (as is), as
determined by an Appraisal delivered to the Special Servicer (at the
expense of the related Borrower and upon which the Special Servicer may
conclusively rely), of the property to be released; or
(c) in the good faith and reasonable judgment of the Special
Servicer, otherwise materially impairs the security for such Mortgage Loan
or Serviced Companion Loan or reduces the likelihood of timely payment of
amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan or Serviced
Companion Loan (other than any REO Loan) and any Due Date, the scheduled monthly
payment of principal, if any, and interest at the Mortgage Rate, excluding any
Balloon Payment (but not excluding any constant Monthly Payment due on a Balloon
Loan), which is payable by the related Borrower on such Due Date under the
related Note, excluding any Excess Interest. With respect to an REO Loan, the
monthly payment that would otherwise have been payable on the related Due Date
had the related Note not been discharged, determined as set forth in the
preceding sentence and on the assumption that all other amounts, if any, due
thereunder are paid when due.
"Moody's": Xxxxx'x Investors Service, Inc., and its successors in
interest.
"Mortgage": The mortgage, deed of trust or other instrument creating
a first lien on or first priority ownership interest in a Mortgaged Property
securing a Note.
"Mortgage File": With respect to any Mortgage Loan or Serviced
Companion Loan, collectively, the mortgage documents listed in Section
2.01(a)(i) through (xx) pertaining to such particular Mortgage Loan or Serviced
Companion Loan and any additional documents required to be added to such
Mortgage File pursuant to the express provisions of this Agreement.
"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. The mortgage loans originally so transferred, assigned and held are
identified on the Mortgage Loan Schedule as of the Closing Date. Such term shall
include any REO Loan, Specially Serviced Loan or any Mortgage Loan that has been
defeased in whole or in part. Such term shall not include the Serviced Companion
Loans but shall include the Serviced Whole Loans.
"Mortgage Loan Purchase Agreements": Each of the GACC Purchase
Agreement, the BCRE Purchase Agreement, the CGMRC Purchase Agreement and the CFI
Purchase Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans included in the
Trust Fund as of the Closing Date being attached hereto as Exhibit B-1, which
list shall set forth the following information with respect to each Mortgage
Loan:
(a) the loan number;
(b) the street address (including city, state and zip code) of the
related Mortgaged Property;
(c) the Mortgage Rate in effect as of the Cut-off Date;
(d) the original principal balance;
(e) the Stated Principal Balance as of the Cut-off Date;
(f) the Maturity Date or Anticipated Repayment Date for each
Mortgage Loan;
(g) the Due Date;
(h) the amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(i) [Reserved];
(j) the Servicing Fee Rate;
(k) whether the Mortgage Loan is an Actual/360 Mortgage Loan;
(l) whether such Mortgage Loan has a hard lock-box, a springing hard
lock-box, a soft-at-closing, springing hard lock-box or no lock-box at
all;
(m) identifying any Mortgage Loans with which any such Mortgage
Loans are cross-collateralized;
(n) the applicable Loan Group to which such Mortgage Loan belongs;
(o) the number of units, pads, rooms or square feet with respect to
each Mortgaged Property;
(p) whether such Mortgage Loan has an Anticipated Repayment Date;
and
(q) the Revised Rate of such Mortgage Loan, if any.
Such list may be in the form of more than one list, collectively setting forth
all of the information required. A comparable list shall be prepared with
respect to each Serviced Companion Loan.
"Mortgage Loan Sellers": Each of GACC, CGMRC, CFI and BCRE.
"Mortgage Pool": All of the Mortgage Loans and any successor REO
Loans, collectively. The Mortgage Pool does not include the Serviced Companion
Loans or any related REO Loans.
"Mortgaged Property": The underlying property securing a Mortgage
Loan including any REO Property, consisting of a fee simple estate, and, with
respect to certain Mortgage Loans, a leasehold estate or both a leasehold estate
and a fee simple estate, or a leasehold estate in a portion of the property and
a fee simple estate in the remainder, in a parcel of land improved by a
commercial property, together with any personal property, fixtures, leases and
other property or rights pertaining thereto.
"Mortgage Rate": With respect to each Mortgage Loan, Serviced
Companion Loan and any Interest Accrual Period, the annual rate at which
interest accrues on such Mortgage Loan or Serviced Companion Loan during such
period (in the absence of a default and excluding any Excess Interest), as set
forth in the related Note from time to time. The "Mortgage Rate" for purposes of
calculating the Net Mortgage Pass-Through Rate and the Weighted Average Net
Mortgage Pass-Through Rate shall be the Mortgage Rate of such Mortgage Loan or
Serviced Companion Loan without giving effect to any Default Rate or any Excess
Interest and without taking into account any reduction in the interest rate by a
bankruptcy court pursuant to a plan of reorganization or pursuant to any of its
equitable powers or a reduction in interest or principal due to a modification
pursuant to Section 3.31, 3.32 or 3.34 hereof, as applicable.
"Net Condemnation Proceeds": Condemnation Proceeds, to the extent
such proceeds are not to be applied to the restoration, preservation or repair
of the related Mortgaged Property or released to the Borrower in accordance with
the express requirements of the Mortgage or Note or other documents included in
the Mortgage File or in accordance with the Servicing Standard.
"Net Default Interest": With respect to any Distribution Date, an
amount equal to the sum of (i) the amount of the aggregate collected Default
Interest allocable to the Mortgage Loans received during the preceding
Collection Period, minus (ii) any portions thereof withdrawn (A) from the
Collection Account pursuant to Section 3.06(b)(ix) for Advance Interest Amounts
and unreimbursed Additional Trust Fund Expenses incurred during or prior to such
Collection Period and (B) from each Serviced Whole Loan Collection Account
pursuant to Section 3.06(c)(ix) for Advance Interest Amounts and unreimbursed
Additional Trust Fund Expenses incurred during such Collection Period.
"Net Insurance Proceeds": Insurance Proceeds, to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Borrower in accordance with the express requirements
of the Mortgage or Note or other documents included in the Mortgage File or in
accordance with prudent and customary servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received with
respect to any Mortgage Loan or Serviced Whole Loan net of the amount of (i)
Liquidation Expenses incurred with respect thereto and, (ii) with respect to
proceeds received in connection with the taking of a Mortgaged Property (or
portion thereof) by the power of eminent domain in condemnation, amounts
required to be applied to the restoration or repair of the related Mortgaged
Property.
"Net Mortgage Pass-Through Rate": With respect to any Mortgage Loan
or Serviced Companion Loan and any Distribution Date, the per annum rate equal
to the Mortgage Rate for such Mortgage Loan or Serviced Companion Loan, minus,
for any such Mortgage Loan or Serviced Companion Loan, the aggregate of the
applicable Servicing Fee Rate and, with respect to any Mortgage Loan, the
Trustee Fee Rate; provided, however, that for purposes of calculating
Pass-Through Rates, the Net Mortgage Pass-Through Rate for any Mortgage Loan or
Serviced Companion Loan will be determined without regard to any modification,
waiver or amendment of the terms of such Mortgage Loan or Serviced Companion
Loan, whether agreed to by the Master Servicer or resulting from a bankruptcy,
insolvency or similar proceeding involving the Borrower.
Notwithstanding the foregoing, if any such Mortgage Loan does not
accrue interest on the basis of a 360-day year consisting of twelve 30-day
months, then the "Net Mortgage Pass-Through Rate" of such Mortgage Loan for any
Interest Accrual Period 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 in respect of such Mortgage Loan at the related
Mortgage Rate less the Servicing Fee Rate and the Trustee Fee Rate during such
Interest Accrual Period; provided, however, that with respect to each such
Mortgage Loan, the Mortgage Rate for the one-month period (i) preceding the Due
Dates in (a) January and February in each year that is not a leap year or (b)
February only in each year that is a leap year (unless, in either case, the
related Distribution Date is the final Distribution Date) will be determined
exclusive of the amounts withheld from that month and (ii) preceding the Due
Date in March (or February if the related Distribution Date is the final
Distribution Date), will be determined inclusive of the Withheld Amounts from
the immediately preceding February and, if applicable, January.
"Net Prepayment Interest Excess": The excess amount, if any, that
the aggregate of all Prepayment Interest Excess for all Mortgage Loans that the
Master Servicer is servicing exceeds the aggregate of all Prepayment Interest
Shortfalls for such Mortgage Loans as of any Distribution Date.
"Net Prepayment Interest Shortfall": With respect to the Mortgage
Loans that the Master Servicer is servicing, the aggregate Prepayment Interest
Shortfalls on such Mortgage Loans in excess of the Servicer Prepayment Interest
Shortfall on such Mortgage Loans.
"Net REO Proceeds": With respect to each REO Property (other than
REO Property related to the ShopKo Portfolio Mortgage Loan, the servicing of
which is governed by the CGCMT 2006-C4 Pooling and Servicing Agreement), REO
Proceeds with respect to such REO Property net of any insurance premiums, taxes,
assessments and other costs and expenses permitted to be paid therefrom pursuant
to Section 3.17(b) of this Agreement.
"New Lease": Any lease of REO Property (other than REO Property
related to the ShopKo Portfolio Mortgage Loan, the servicing of which is
governed by the CGCMT 2006-C4 Pooling and Servicing Agreement) entered into on
behalf of the Lower-Tier REMIC if such REMIC has the right to renegotiate the
terms of such lease, including any lease renewed or extended on behalf of such
REMIC.
"NOI Adjustment Worksheet": A report substantially in the form of,
and containing the information called for in, the downloadable form of the "NOI
Adjustment Worksheet" 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 promulgated as recommended 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 "NOI Adjustment Worksheet" available as of the Closing Date on
the CMSA Website, is acceptable to the Master Servicer or the Special Servicer,
as applicable.
"Non-U.S. Person": A person that is not a U.S. Person.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance,
Nonrecoverable Property Advance or Nonrecoverable Workout-Delayed Reimbursement
Amounts.
"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 Master Servicer, the Special Servicer, in each case
in accordance with the Servicing Standard, or the Trustee, as applicable, would
not be ultimately recoverable, together with any accrued and unpaid interest
thereon, from late payments, Condemnation Proceeds, Insurance Proceeds,
Liquidation Proceeds and other collections on or in respect of the related
Mortgage Loan or REO Loan, which shall be evidenced by an officer certificate as
provided by Section 4.07(c). 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 Property Advance": Any Property Advance previously
made or proposed to be made in respect of a Mortgage Loan or the Serviced Whole
Loan or any REO Property that, in the reasonable judgment of the Master
Servicer, the Special Servicer, in each case in accordance with the Servicing
Standard, or the Trustee, as applicable, would not be ultimately recoverable,
together with any accrued and unpaid interest thereon, from late payments,
Condemnation Proceeds, Insurance Proceeds, Liquidation Proceeds and other
collections on or in respect of the related Mortgage Loan, REO Loan or Serviced
Whole Loan, which shall be evidenced by an officer certificate as provided by
Section 3.24(d). 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 Workout-Delayed Reimbursement Amounts": Any
Workout-Delayed Reimbursement Amounts when the Person making such determination
in accordance with the procedures specified for Nonrecoverable Property Advances
or Nonrecoverable P&I Advances, as applicable, and taking into account factors
such as all other outstanding Advances, either (a) has determined that such
Workout-Delayed Reimbursement Amounts, would not ultimately be recoverable from
late payments or any other recovery on or in respect of the related Mortgage
Loan or Serviced Loan or REO Loans or (b) has determined that such
Workout-Delayed Reimbursement Amounts would not ultimately be recoverable, along
with any other Workout-Delayed Reimbursement Amounts and Nonrecoverable
Advances, out of the principal portion of future collections on all of the
Mortgage Loans and REO Properties, from general principal collections in the
Collections Account.
"Note": With respect to any Mortgage Loan or Serviced Companion Loan
as of any date of determination, the note or other evidence of indebtedness
and/or agreements evidencing the indebtedness of a Borrower under such Mortgage
Loan or Serviced Companion Loan including any amendments or modifications, or
any renewal or substitution notes, as of such date.
"Notice of Termination": Any of the notices given to the Trustee and
the Master Servicer by the Certificateholder owning a majority of the Percentage
Interests in the Controlling Class, the Special Servicer or the Master Servicer
pursuant to Section 9.01(c).
"Notional Amount" or "Notional Balance": As of any date of
determination: (i) with respect to all of the Class X Certificates, the Class X
Notional Amount, as of such date of determination; and (ii) with respect to any
Class X Certificate, the product of the Percentage Interest evidenced by such
Certificate and the Class X Notional Amount as of such date of determination.
"Officer's Certificate": A certificate signed by the Chairman of the
Board, the Vice Chairman of the Board, the President or a Vice President
(however denominated) and by the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer of the
Master Servicer, Special Servicer or Additional Servicer customarily performing
functions similar to those performed by any of the above designated officers,
any Servicing Officer and also with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject, or an authorized officer of the
Depositor, and delivered to the Depositor, the Trustee, the Special Servicer or
the Master Servicer, as the case may be.
"Operating Statement Analysis Report": A report substantially in the
form of, and contain the information called for in, the downloadable form of the
"Operating Statement Analysis Report" available as of the Closing Date on the
CMSA Website or in such other form for the presentation of such information and
containing such additional information as may from time to time be promulgated
as recommended by the CMSA for commercial mortgage-backed securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Operating
Statement Analysis Report" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicer or the Special Servicer, as
applicable.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Depositor, the Special Servicer or the Master
Servicer, as the case may be, acceptable to the Trustee, except that any opinion
of counsel relating to (a) qualification of the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC or the imposition of tax under the REMIC Provisions
on any income or property of either REMIC, (b) compliance with the REMIC
Provisions (including application of the definition of "Independent
Contractor"), (c) qualification of the Grantor Trust as a grantor trust or (d) a
resignation of the Master Servicer or the Special Servicer pursuant to Section
6.04, must be an opinion of counsel who is Independent of the Depositor and the
Master Servicer.
"Originator": Any of (i) the Mortgage Loan Sellers, and (ii) with
respect to any Mortgage Loan acquired by a Mortgage Loan Seller, the originator
of such Mortgage Loan.
"Other Indemnified Parties": As defined in Section 6.07.
"Ownership Interest": Any record or beneficial interest in a Class R
or Class LR Certificate.
"P&I Advance": As to any Mortgage Loan, any advance made by the
Master Servicer or the Trustee pursuant to Section 4.07. Each reference to the
payment or reimbursement of a P&I Advance shall be deemed to include, whether or
not specifically referred to and without duplication, payment or reimbursement
of interest thereon at the Advance Rate from and including the date of the
making of such P&I Advance to and including the date of payment or
reimbursement.
"P&I Advance Determination Date": With respect to any Distribution
Date, the second Business Day prior to such Distribution Date.
"Pari Passu Companion Loans": Collectively, the Ala Moana Portfolio
Companion Loans and the Fair Lakes Office Portfolio Companion Loan.
"Pass-Through Rate": With respect to each Class of Certificates
(other than the Class T, Class R and Class LR Certificates), the rate for such
Class as set forth below:
Class Pass-Through Rate
------------------ ----------------------------------
Class A-1........ Class A-1 Pass-Through Rate
Class A-1D....... Class A-1D Pass-Through Rate
Class A-2........ Class A-2 Pass-Through Rate
Class A-3........ Class A-3 Pass-Through Rate
Class A-AB....... Class A-AB Pass-Through Rate
Class A-4........ Class A-4 Pass-Through Rate
Class A-5........ Class A-5 Pass-Through Rate
Class A-1A....... Class A-1A Pass-Through Rate
Class A-1S....... Class A-1S Pass-Through Rate
Class XS......... Class XS Pass-Through Rate
Class XP......... Class XP Pass-Through Rate
Class A-M........ Class A-M Pass-Through Rate
Class A-J........ Class A-J Pass-Through Rate
Class B.......... Class B Pass-Through Rate
Class C.......... Class C Pass-Through Rate
Class D.......... Class D Pass-Through Rate
Class E.......... Class E Pass-Through Rate
Class F.......... Class F Pass-Through Rate
Class G.......... Class G Pass-Through Rate
Class H.......... Class H Pass-Through Rate
Class J.......... Class J Pass-Through Rate
Class K.......... Class K Pass-Through Rate
Class L.......... Class L Pass-Through Rate
Class M.......... Class M Pass-Through Rate
Class N.......... Class N Pass-Through Rate
Class O.......... Class O Pass-Through Rate
Class P.......... Class P Pass-Through Rate
Class Q.......... Class Q Pass-Through Rate
Class S.......... Class S Pass-Through Rate
With respect to each Class of Lower-Tier Regular Interests, the
Weighted Average Net Mortgage Pass-Through Rate.
"Paying Agent": The paying agent appointed pursuant to Section 5.04.
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Charges": With respect to any Mortgage Loan or Serviced
Companion Loan (or successor REO Loan), any amounts collected thereon that
represent late payment charges or Default Interest, other than a Yield
Maintenance Charge or Excess Interest.
"Percentage Interest": As to any Certificate (other than the Class T
Certificate), the percentage interest evidenced thereby in distributions
required to be made with respect to the related Class. With respect to any
Certificate (except the Class T, Class R and Class LR Certificates), the
percentage interest is equal to the initial denomination of such Certificate
divided by the initial Certificate Balance or Notional Balance, as applicable,
of such Class of Certificates. With respect to any Class T, Class R or Class LR
Certificate, the percentage interest is set forth on the face thereof.
"Performing Loan": A Mortgage Loan or Serviced Whole Loan that is
not a Specially Serviced Loan or REO Loan.
"Permitted Investments": Any one or more of the following
obligations or securities payable on demand or having a scheduled maturity on or
before the Business Day preceding the date upon which such funds are required to
be drawn, regardless of whether issued by the Depositor, the Master Servicer,
the Special Servicer, the Trustee or any of its respective Affiliates and having
at all times the required ratings, if any, provided for in this definition,
unless each Rating Agency shall have confirmed in writing to the Master Servicer
that a lower rating would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates or any Companion Loan Securities:
(a) direct obligations of, or obligations fully guaranteed as to
payment of principal and interest by, the United States or any agency or
instrumentality thereof provided such obligations are backed by the full
faith and credit of the United States of America including, without
limitation, obligations of the U.S. Treasury (all direct or fully
guaranteed obligations), the Farmers Home Administration (certificates of
beneficial ownership), the General Services Administration (participation
certificates), the U.S. Maritime Administration (guaranteed Title XI
financing), the Small Business Administration (guaranteed participation
certificates and guaranteed pool certificates), the U.S. Department of
Housing and Urban Development (local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed transit bonds); provided,
however, that each investment described in this clause must (A) have a
predetermined fixed dollar amount of principal due at maturity, which
cannot vary or change, (B) if bearing a variable rate of interest, have
its interest rate tied to a single interest rate index plus a fixed spread
(if any) and move proportionately with that index, and (C) not be subject
to liquidation prior to its maturity;
(b) Federal Housing Administration debentures;
(c) obligations of the following United States government sponsored
agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm
Credit System (consolidated systemwide bonds and notes), the Federal Home
Loan Banks (consolidated debt obligations), the Federal National Mortgage
Association (debt obligations), the Student Loan Marketing Association
(debt obligations), the Financing Corp. (debt obligations), and the
Resolution Funding Corp. (debt obligations); provided, however, that each
investment described in this clause must (A) have a predetermined fixed
dollar amount of principal due at maturity, which cannot vary or change,
(B) if bearing a variable rate of interest, its interest rate tied to a
single interest rate index plus a fixed spread (if any) and move
proportionately with that index, and (C) not be subject to liquidation
prior to their maturity;
(d) federal funds, unsecured certificates of deposit, time or
similar deposits, bankers' acceptances and repurchase agreements, with
maturities of not more than 365 days, of any bank, the short term
obligations of which are rated in the highest short term rating category
by each Rating Agency or, if not rated by S&P or Xxxxx'x, as applicable,
otherwise acceptable to S&P or Xxxxx'x, as applicable (or, if applicable,
the comparable rating from Fitch, with respect to any class of Companion
Loan Securities that is rated by Fitch); provided, however, that the
investment described in this clause must (A) have a predetermined fixed
dollar amount of principal due at maturity, which cannot vary or change,
(B) if bearing a variable rate of interest, have its interest rate tied to
a single interest rate index plus a fixed spread (if any) and move
proportionately with that index, and (C) not be subject to liquidation
prior to its maturity;
(e) fully Federal Deposit Insurance Corporation-insured demand and
time deposits in, or certificates of deposit of, or bankers' acceptances
issued by, any bank or trust company, savings and loan association or
savings bank, and, if such demand and time deposits in, or certificates of
deposit of, or bankers' acceptances are not fully insured by the Federal
Deposit Insurance Corporation, the short term obligations of such bank or
trust company, savings and loan association or savings bank are rated in
the highest short term rating category by each Rating Agency or, if not
rated by S&P or Xxxxx'x, as applicable, otherwise acceptable to S&P or
Xxxxx'x, as applicable (or, if applicable, the comparable rating from
Fitch, with respect to any class of Companion Loan Securities that is
rated by Fitch); provided, however, that each investment described in this
clause must (A) have a predetermined fixed dollar amount of principal due
at maturity, which cannot vary or change, (B) if bearing a variable rate
of interest, its interest rate tied to a single interest rate index plus a
fixed spread (if any) and move proportionately with that index, and (C)
not be subject to liquidation prior to their maturity;
(f) debt obligations with maturities of not more than 365 days rated
in the highest long-term unsecured rating category by each Rating Agency
or, if not rated by S&P or Xxxxx'x, as applicable, otherwise acceptable to
S&P or Xxxxx'x, as applicable (or, if applicable, the comparable rating
from Fitch, with respect to any class of Companion Loan Securities that is
rated by Fitch); provided, however, that each investment described in this
clause must (A) have a predetermined fixed dollar amount of principal due
at maturity, which cannot vary or change, (B) if bearing a variable rate
of interest, have its interest rate tied to a single interest rate index
plus a fixed spread (if any) and move proportionately with that index, and
(C) not be subject to liquidation prior to its maturity;
(g) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
with maturities of not more than 365 days and that is rated in the highest
short-term unsecured debt rating by each Rating Agency or, if not rated by
S&P or Xxxxx'x, as applicable, otherwise acceptable to S&P or Xxxxx'x, as
applicable (or, if applicable, the comparable rating from Fitch, with
respect to any class of Companion Loan Securities that is rated by Fitch);
provided, however, that each investment described in this clause must (A)
have a predetermined fixed dollar amount of principal due at maturity,
which cannot vary or change, (B) if bearing a variable rate of interest,
have its interest rate tied to a single interest rate index plus a fixed
spread (if any) and move proportionately with that index, and (C) not be
subject to liquidation prior to their maturity;
(h) units of taxable money market mutual funds, issued by regulated
investment companies, which seek to maintain a constant net asset value
per share (including the Federated Prime Obligation Money Market Fund (the
"Fund")) so long as any such fund is rated in the highest short-term
unsecured debt ratings category by each Rating Agency or, if not rated by
S&P or Xxxxx'x, as applicable, otherwise acceptable to S&P or Xxxxx'x, as
applicable (or, if applicable, the comparable rating from Fitch, with
respect to any class of Companion Loan Securities that is rated by Fitch);
and
(i) any other demand, money market or time deposit, demand
obligation or any other obligation, security or investment, provided that
each Rating Agency has confirmed in writing to the Master Servicer,
Special Servicer or Trustee, as applicable, that such investment would
not, in and of itself, result in a downgrade, qualification or withdrawal
of the then-current ratings assigned to the Certificates or the Companion
Loan Securities.
provided, however, that no instrument or security shall be a Permitted
Investment (a) unless such instrument is a "cash flow investment" earning a
passive return in the nature of interest pursuant to Code Section 860G(a)(6) or
(b) if (i) such instrument or security evidences a right to receive only
interest payments or (ii) the right to receive principal and interest payments
derived from the underlying investment provides a yield to maturity in excess of
120% of the yield to maturity at par of such underlying investment or (c) if it
may be redeemed of a price below the purchase price. No Permitted Investment may
be purchased at a price in excess of par or sold prior to maturity if such sale
would result in a loss of principal or a tax on a prohibited transaction under
Section 860F of the Code.
"Permitted Transferee": With respect to a Class R or Class LR
Certificate, any Person or agent thereof that is a Qualified Institutional
Buyer, an Affiliated Person or an Institutional Accredited Investor, other than
(a) a Disqualified Organization, (b) any other Person so designated by the
Certificate Registrar who is unable to provide an Opinion of Counsel (provided
at the expense of such Person or the Person requesting the Transfer) to the
effect that the Transfer of an Ownership Interest in any Class R or Class LR
Certificate to such Person will not cause either Trust REMIC to fail to qualify
as a REMIC at any time that the Certificates are outstanding, (c) a Person that
is a Disqualified Non-U.S. Person and (d) a Plan or any Person investing the
assets of a Plan.
"Person": Any individual, corporation, limited liability company,
partnership, 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(k).
"Prepayment Assumption": The assumption that (i) each Mortgage Loan
(other than an ARD Loan) does not prepay prior to its respective Maturity Date
and (ii) each ARD Loan prepays on its Anticipated Repayment Date.
"Prepayment Date": As defined in Section 2.03(d).
"Prepayment Interest Excess": With respect to any Distribution Date,
the aggregate amount, with respect to all Mortgage Loans that the Master
Servicer is servicing, were subject to Principal Prepayment in full or in part,
or as to which Insurance Proceeds, Liquidation Proceeds or Condemnation
Proceeds, as applicable, were received by the Master Servicer or Special
Servicer for application to such Mortgage Loans, in each case after the Due Date
in the month of such Distribution Date and on or prior to the related
Determination Date, the amount of interest accrued at the Mortgage Rate for such
Mortgage Loans on the amount of such Principal Prepayments, Insurance Proceeds,
Liquidation Proceeds and Condemnation Proceeds after the Due Date relating to
such Collection Period and accruing in the manner set forth in the related Loan
Documents, to the extent such interest is collected by the Master Servicer or
the Special Servicer (without regard to any Prepayment Premium, Yield
Maintenance Charge or Excess Interest actually collected).
"Prepayment Interest Shortfall": With respect to any Distribution
Date, for each Mortgage Loan that the Master Servicer is Servicing that was
subject to a Principal Prepayment in full or in part and which did not include a
full month's interest, or as to which Insurance Proceeds, Liquidation Proceeds
or Condemnation Proceeds, as applicable, were received by the Master Servicer or
Special Servicer for application to such Mortgage Loan, in each case after the
Due Date in the calendar month preceding such Distribution Date but prior to the
Due Date in the related Collection Period, the amount of interest that would
have accrued at the Net Mortgage Pass-Through Rate for such Mortgage Loan on the
amount of such Principal Prepayment, Insurance Proceeds, Liquidation Proceeds or
Condemnation Proceeds during the period commencing on the date as of which such
Principal Prepayment, Insurance Proceeds, Liquidation Proceeds or Condemnation
Proceeds, as applicable, were applied to the unpaid principal balance of the
Mortgage Loan and ending on (and including) the day immediately preceding such
Due Date (without regard to any Prepayment Premium, Yield Maintenance Charge or
Excess Interest actually collected).
"Prepayment Premium": Any premium, fee or other additional amount
(other than a Yield Maintenance Charge) paid or payable on a Mortgage Loan or
Serviced Companion Loan by a Borrower as the result of a Principal Prepayment
thereon, not otherwise due thereon, in respect of principal or interest, which
is intended to compensate the holder of the related Note for prepayment.
"Primary Servicing Fee Rate": With respect to each Mortgage Loan or
Serviced Companion Loan, the rate per annum set forth on Exhibit B-2.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of The Wall Street Journal, Eastern edition (or, if such section or
publication is no longer available, such other comparable publication as
determined by the Trustee 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 Trustee in its reasonable discretion) as may be in
effect from time to time. The Trustee shall notify in writing the Master
Servicer and the Special Servicer with regard to any determination of the Prime
Rate in accordance with the parenthetical in the preceding sentence.
"Principal Balance Certificate": The Class A-1, Class A-1D, Class
A-2, Class A-3, Class A-AB, Class A-4, Class A-5, Class A-1A, Class A-1S, 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 O, Class P, Class Q and Class
S Certificates.
"Principal Distribution Amount": For any Distribution Date, an
amount equal to (i) the sum of:
(a) the principal component of all scheduled Monthly Payments (other
than Balloon Payments) due on the Mortgage Loans on the related Due Date
(if received during the related Collection Period or advanced);
(b) the principal component of all Assumed Scheduled Payments due on
the related Due Date (if received during the related Collection Period or
advanced) with respect to any Mortgage Loan that is delinquent in respect
of its Balloon Payment;
(c) the Stated Principal Balance of each Mortgage Loan that was,
during the related Collection Period, repurchased from the Trust Fund in
connection with a Breach or Defect pursuant to Section 2.03, purchased
pursuant to Section 3.18, or purchased from the Trust Fund pursuant to
Section 9.01;
(d) the portion of Unscheduled Payments allocable to principal of
any Mortgage Loan that was liquidated during the related Collection
Period;
(e) the principal component of all Balloon Payments and any other
principal payment on any Mortgage Loan received on or after the Maturity
Date thereof, to the extent received during the related Collection Period;
(f) all other Principal Prepayments on Mortgage Loans received in
the related Collection Period; and
(g) any other full or partial recoveries in respect of principal of
Mortgage Loans, including Insurance Proceeds, Liquidation Proceeds and Net
REO Proceeds received in the related Collection Period (including any
amount related to the Loss of Value Payments to the extent that such
amount was transferred into the Collection Account pursuant to Section
3.06(f) during the related Collection Period),
as reduced by (ii) any (1) Nonrecoverable Advances plus interest on such
Nonrecoverable Advances that are paid or reimbursed from principal collections
on the Mortgage Loans or, with respect to Property Advances, the Serviced Whole
Loans, in a period during which such principal collections would have otherwise
been included in the Principal Distribution Amount for such Distribution Date
and (2) Workout-Delayed Reimbursement Amounts that were paid or reimbursed from
principal collections on the Mortgage Loans or, with respect to Property
Advances, the Serviced Whole 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 clauses (1)
and (2) above, if any of the amounts that were reimbursed from principal
collections on the Mortgage Loans or, with respect to Property Advances, the
Serviced Whole Loans, are subsequently recovered on the related Mortgage Loan
or, with respect to Property Advances, the Serviced Whole Loan, such recovery
will increase the Principal Distribution Amount for the Distribution Date
related to the period in which such recovery occurs).
The principal component of the amounts set forth above shall be determined in
accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by a Borrower
on a Mortgage Loan or Serviced Companion Loan which is received in advance of
its scheduled Due Date and which is not accompanied by an amount of interest
representing the full amount of scheduled interest due on any date or dates in
any month or months subsequent to the month of prepayment.
"Private Global Certificate": Each of the Regulation S Global
Certificates or Rule 144A Global Certificates with respect to the Class XS,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class Q and Class S Certificates if and so long as such class of Certificates is
registered in the name of a nominee of the Depository.
"Private Placement Memorandum": Means the Private Placement
Memorandum, dated October 23, 2006, pursuant to which the Class XS, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q
and Class S Certificates will be offered for sale.
"Privileged Person": Means a party to this Agreement, a Rating
Agency, a designee of the Depositor (including any financial market publisher),
the initial Controlling Class Representative, each Underwriter, each Serviced
Companion Loan Noteholder, any registered holder or beneficial owner of any
Companion Loan Securities and any other person who delivers to the Trustee in
the form attached hereto as Exhibit L (which form may be provided by the Trustee
upon request), a certification that such person is a Certificateholder, a
Certificate Owner of a Certificate or a prospective purchaser of a Certificate.
"Prohibited Party: Any party that (i) is listed on the Depositor's
Do Not Hire List or (ii) is a proposed Servicing Function Participant for which
the Master Servicer, the Special Servicer or the Trustee that seeks to retain
such Servicing Function Participant has actual knowledge obtained by written
notice or through actual experience that such party at any point prior to such
hiring, assignment or transfer failed to comply with the Servicing Function
Participant's obligations under Regulation AB with respect to any other
securitization.
"Property Advance": As to any Mortgage Loan (other than the ShopKo
Portfolio Mortgage Loan, the servicing of which is governed by the CGCMT 2006-C4
Pooling and Servicing Agreement) or Serviced Whole Loan, any advance made by the
Master Servicer, the Special Servicer or the Trustee, as applicable, in respect
of Property Protection Expenses or any expenses incurred to protect, preserve
and enforce the security for a Mortgage Loan or a Serviced Whole Loan or to pay
taxes and assessments or insurance premiums with respect to the related
Mortgaged Property, to the extent the making of any such advance is specifically
provided for in this Agreement, including, but not limited to, as provided in
Section 3.04 and Section 3.24, as applicable. Each reference to the payment or
reimbursement of a Property Advance shall be deemed to include, whether or not
specifically referred to, payment or reimbursement of interest thereon at the
Advance Rate from and including the date of the making of such Advance to and
including the date of payment or reimbursement. Notwithstanding anything to the
contrary, "Property Advance" shall not include allocable overhead of the Master
Servicer or the Special Servicer, as applicable, 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.
"Property Protection Expenses": With respect to any Mortgage Loan
(other than the ShopKo Portfolio Mortgage Loan, the servicing of which is
governed by the CGCMT 2006-C4 Pooling and Servicing Agreement) or Serviced
Companion Loan, any costs and expenses incurred by the Master Servicer or the
Special Servicer pursuant to Sections 3.04, 3.08(a), 3.10(b), 3.10(e), 3.10(f),
3.10(h), 3.10(i), 3.10(k), 3.11, 3.12(e), 3.17(a), 3.17(b), 3.17(c), 3.18(g) or
3.28(a) or indicated herein as being payable as a Property Advance or as a cost
or expense of the Trust Fund (and, in the case of the Serviced Whole Loans, the
Serviced Companion Loan Noteholders but subject to the provisions of Section
1.02(e)) or the Lower-Tier REMIC, or Upper-Tier REMIC to be paid out of the
Collection Account .
"Prospectus": The Depositor's Prospectus dated October 9, 2006, as
supplemented by the Prospectus Supplement dated October 23, 2006, relating to
the offering of the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-5, Class A-1A, Class A-1S, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F and Class XP Certificates.
"PTCE 95-60": Prohibited Transaction Class Exemption 95-60.
"Qualified Institutional Buyer": A qualified institutional buyer
within the meaning of Rule 144A.
"Qualified Insurer": As used in Section 3.08, (i) an insurance
company or security or bonding company qualified to write the related insurance
policy in the relevant jurisdiction which shall have a rating of "A3" or better
by Moody's (if then rated by Moody's) and an insurance financial strength rating
of "A-" or better by S&P (or, if applicable, the comparable rating from Fitch,
with respect to any class of Companion Loan Securities that is rated by Fitch)
and (ii) in the case of the fidelity bond and the errors and omissions insurance
required to be maintained pursuant to Section 3.08(d), shall have a claims
paying ability rated by each Rating Agency no lower than two ratings categories
(without regard to pluses or minuses or numeric qualifications) lower than the
highest rating of any outstanding class of Certificates from time to time, but
in no event lower than "A2" by Moody's (or if such company is not rated by
Xxxxx'x, is rated at least A:IX by A.M. Best's Key Rating Guide) and in the case
of S&P, an insurance financial strength rating of "A" or better (or, if
applicable, the comparable rating from Fitch, with respect to any class of
Companion Loan Securities that is rated by Fitch), unless in any such case each
of the Rating Agencies has confirmed in writing that obtaining the related
insurance from an insurance company that is not rated by each of the Rating
Agencies (subject to the foregoing exceptions) or that has a lower claims-paying
ability than such requirements shall not result, in and of itself, in a
downgrade, qualification or withdrawal of the then-current ratings by such
Rating Agency to any Class of Certificates or any class of Companion Loan
Securities.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage"
within the meaning of Code Section 860G(a)(3) of the Code (but without regard to
the rule in Treasury Regulations Section 1.860G-2(f)(2) that treats a defective
obligation as a qualified mortgage), or any substantially similar successor
provision.
"Qualifying Substitute Mortgage Loan": A mortgage loan which must,
on the date of substitution: (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and/or interest due
during or prior to the month of substitution, whether or not received, not in
excess of the Stated Principal Balance of the Removed 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 Removed Mortgage Loan;
(iii) have the same Due Date as the Removed Mortgage Loan; (iv) accrue interest
on the same basis as the Removed Mortgage Loan (for example, on the basis of a
360-day year and the actual number of days elapsed); (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 Removed Mortgage Loan; (vi) have a then
current loan-to-value ratio equal to the lesser of (x) original loan-to-value
ratio of the Removed Mortgage Loan and (y)75%; (vii) materially comply 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 and engineering report that indicates no material adverse environmental
conditions with respect to the related Mortgaged Property and that will be
delivered as a part of the related Servicing File; (ix) have a current Debt
Service Coverage Ratio of not less than the greater of (x) original Debt Service
Coverage Ratio of the Removed Mortgage Loan and (y) 1.25x; (x) be determined by
an Opinion of Counsel (at the applicable Mortgage Loan Seller's expense) to be a
"qualified replacement mortgage" within the meaning of Section 860G(a)(4) of the
Code; (xi) not have a maturity date after the date that is three years prior to
the Rated Final Distribution Date; (xii) not be substituted for a Removed
Mortgage Loan unless the Trustee has received prior confirmation in writing by
each Rating Agency that such substitution will not in and of itself 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) (provided that no such confirmation from any Rating Agency shall be
required with respect to any Companion Loan Securities); (xiii) have been
approved by the Controlling Class Representative in its sole discretion; (xiv)
prohibit defeasance within two years after the Closing Date, (xv) not be
substituted for a Removed Mortgage Loan if it would result in the termination of
the REMIC status of either Trust REMIC or the imposition of tax on either of
such REMICs other than a tax on income expressly permitted or contemplated to be
received by the terms of this Agreement, as determined by an Opinion of Counsel
and (xvi) if the Removed Mortgage Loan is part of Loan Group 2, have the same
property type designation as the Removed Mortgage Loan. In the event that one or
more mortgage loans are substituted for one or more Removed Mortgage Loans, then
the amounts described in clause (i) shall be determined on the basis of
aggregate Stated Principal Balances 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 shall be lower than the highest Pass-Through Rate (that is a fixed rate not
subject to a cap equal to the Weighted Average Net Mortgage Pass-Through Rate)
of any Class of Principal Balance Certificates having an outstanding Certificate
Balance. When a Qualified Substitute Mortgage Loan is substituted for a Removed
Mortgage Loan, 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.
"Rated Final Distribution Date": The Distribution Date in January
2046.
"Rating Agency": means any of S&P and Moody's and, if applicable,
Fitch if it is rating any Companion Loan Securities.
"Real Property": Land or improvements thereon such as buildings or
other inherently permanent structures thereon (including items that are
structural components of the buildings or structures), in each such case as such
terms are used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date, the amount,
if any, by which (i) the aggregate Certificate Balance of the Principal Balance
Certificates after giving effect to distributions of principal on such
Distribution Date exceeds (ii) the aggregate Stated Principal Balance of the
Mortgage Loans in the Mortgage Pool (for purposes of this calculation only, not
giving effect to any reductions of the Stated Principal Balance for principal
payments received on the Mortgage Loans in the Mortgage Pool that were used to
reimburse the Master Servicer or the Trustee from general collections of
principal on the Mortgage Loans for Workout-Delayed Reimbursement Amounts, to
the extent such Workout-Delayed Reimbursement Amounts are not otherwise
determined to be Nonrecoverable Advances) immediately following the
Determination Date preceding such Distribution Date.
"Reassignment of Assignment of Leases, Rents and Profits": As
defined in Section 2.0l(a)(viii).
"Reconciliation of Funds Report": A report prepared by the Trustee
substantially in the form of, and containing the information called for in, the
downloadable form of the "Reconciliation of Funds Report" available as of the
Closing Date on the CMSA Website, or such other final form for the presentation
of such information and containing such additional information as may from time
to time be promulgated as recommended 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 Report" available as of the Closing Date on the CMSA Website, is
reasonably acceptable to the Trustee, the Master Servicer or the Special
Servicer, as applicable.
"Record Date": With respect to each Distribution Date, the close of
business on the last day of the calendar month preceding the month in which such
Distribution Date occurs or, if such day is not a Business Day, the preceding
Business Day; provided, however, that with respect to the Distribution Date
occurring in November 2006, the Record Date will be the Closing Date.
"Regular Certificates": The Class A-1, Class A-1D, Class A-2, Class
A-3, Class A-AB, Class A-4, Class A-5, Class A-1A, Class A-1S, Class XS, Class
XP, 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 O, Class P, Class Q
and Class S 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 Red. Reg. 1,506-1,631 (January 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 Servicer": As defined in Section 10.3(b).
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificate": Each of the Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P and Class S
Certificates issued as such on the Closing Date.
"Regulation S Investor": With respect to a transferee of an interest
in a Regulation S Global Certificate, a transferee that acquires such interest
pursuant to Regulation S.
"Regulation S Transfer Certificate": As defined in Section
5.02(c)(i)(B).
"Relevant Servicing Criteria": The Servicing Criteria applicable to
each Reporting Servicer (as set forth, with respect to the Master Servicer, the
Special Servicer and the Trustee, on Schedule II attached hereto). For
clarification purposes, multiple Reporting Servicers can have responsibility for
the same Relevant Servicing Criteria and some of the Servicing Criteria will not
be applicable to certain Reporting Servicers. With respect to a Servicing
Function Participant engaged by the Trustee, the Master Servicer or the Special
Servicer, the term "Relevant Servicing Criteria" refers to the items of the
Relevant Servicing Criteria applicable to the Trustee, the Master Servicer or
the Special Servicer that engaged such Servicing Function Participant that are
applicable to such Servicing Function Participant based on the functions it has
been engaged to perform.
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code and the REMIC Provisions.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Section
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations (including any applicable proposed regulations) and
rulings promulgated thereunder, as the foregoing may be in effect from time to
time.
"Removed Mortgage Loan": A Mortgage Loan which is repurchased from
the Trust Fund pursuant to the terms hereof or as to which one or more
Qualifying Substitute Mortgage Loans are substituted.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code, which income,
subject to the terms and conditions of that Section of the Code in its present
form, does not include:
(a) except as provided in Section 856(d)(4) or (6) of the Code, any
amount received or accrued, directly or indirectly, with respect to such
REO Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts or
sales and otherwise constitutes Rents from Real Property);
(b) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person determined
in accordance with Sections 856(d)(2)(B) and (d)(5) of the Code;
(c) any amount received or accrued, directly or indirectly, with
respect to such REO Property if any Person Directly Operates such REO
Property;
(d) any amount charged for services that are not customarily
furnished in connection with the rental of property to tenants in
buildings of a similar class in the same geographic market as such REO
Property within the meaning of Treasury Regulations Section 1.856-4(b)(1)
(whether or not such charges are separately stated); and
(e) rent attributable to personal property unless such personal
property is leased under, or in connection with, the lease of such REO
Property and, for any taxable year of the Trust Fund, such rent is no
greater than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Loan": Any Mortgage Loan or any Serviced Whole Loan as to which
the related Mortgaged Property has become an REO Property.
"REO Proceeds": With respect to any REO Property (other than REO
Property related to the ShopKo Portfolio Mortgage Loan, the servicing of which
is governed by the CGCMT 2006-C4 Pooling and Servicing Agreement) and the
related REO Loan, all revenues received by the Special Servicer with respect to
such REO Property or REO Loan which do not constitute Liquidation Proceeds.
"REO Property": A Mortgaged Property (other than the Mortgaged
Property related to the ShopKo Portfolio Mortgage Loan) title to which has been
acquired by the Special Servicer on behalf of the Trust Fund through
foreclosure, deed in lieu of foreclosure or otherwise. With respect to the
ShopKo Portfolio Mortgage Loan, the beneficial interest owned by the Trust in
the related Mortgaged Property acquired under the CGCMT 2006-C4 Pooling and
Servicing Agreement. Except as otherwise specifically provided herein, all
references related to servicing a Mortgaged Property or REO Property shall
exclude the ShopKo Portfolio Mortgage Loan.
"REO Status Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "REO
Status Report" available as of the Closing Date on the CMSA Website, or in such
other form for the presentation of such information and containing such
additional information as may from time to time be promulgated as recommended 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 "REO Status Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicer or the Special
Servicer, as applicable.
"Replacement Mortgage Loan": Any Qualifying Substitute Mortgage Loan
that is substituted for one or more Removed Mortgage Loans.
"Reportable Event": As defined in Section 10.9.
"Reporting Servicer": The Master Servicer, the Special Servicer, the
Trustee and any Servicing Function Participant, as the case may be.
"Repurchase Price": With respect to any Mortgage Loan to be
repurchased or purchased pursuant to Sections 2.03(d) or 9.01, or any Specially
Serviced Loan or any REO Loan to be sold pursuant to Section 3.18, an amount,
calculated by the Master Servicer or the Special Servicer, as applicable, equal
to:
(a) the outstanding principal balance of such Mortgage Loan as of
the date of purchase; plus
(b) all accrued and unpaid interest on such Mortgage Loan at the
related Mortgage Rate in effect from time to time to but not including the
Due Date in the month of purchase, but excluding any Yield Maintenance
Charges or other Prepayment Premium; plus
(c) all related unreimbursed Property Advances plus accrued and
unpaid interest on related Advances at the Advance Rate, and unpaid
Special Servicing Fees and Workout Fees allocable to such Mortgage Loan;
plus
(d) any Liquidation Fee due pursuant to Section 3.12 hereunder
allocable to such Mortgage Loan; plus
(e) if such Mortgage Loan (or related REO loan) is being purchased
by a Mortgage Loan Seller pursuant to Section 2.03(d), to the extent not
otherwise included in the amount described in clause (c) of this
definition, all reasonable out-of-pocket expenses reasonably incurred or
to be incurred by the 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 duplication,
any amounts previously reimbursed from any Collection Account or the
applicable Serviced Whole Loan Collection Account, as applicable, plus
accrued and unpaid interest thereon at the Advance Rate, to the extent
payable to the Master Servicer, the Special Servicer or the Trustee.
For purposes of this Agreement, the "Repurchase Price" in respect of
a sale of an REO Property securing a Serviced Whole Loan, the term Mortgage Loan
shall be construed to include any related Pari Passu Companion Loan(s) and/or B
Loan(s).
"Request for Release": A request for a release signed by a Servicing
Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan or Serviced
Whole Loan, reserve accounts, if any, established pursuant to the Mortgage or
the Loan Agreement and any Escrow Account. Any Reserve Account may be a
sub-account of a related Cash Collateral Account. Any Reserve Account shall be
beneficially owned for federal income tax purposes by the Person who is entitled
to receive the reinvestment income or gain thereon in accordance with the terms
and provisions of the related Mortgage Loan and Section 3.07, which Person shall
be taxed on all reinvestment income or gain thereon. The Master Servicer shall
be permitted to make withdrawals therefrom for deposit into the related Cash
Collateral Account, if applicable, or its Collection Account or for the purposes
set forth under the related Mortgage Loan or Serviced Whole Loan.
"Resolution Extension Period" shall mean:
(a) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, the 90-day period following the end of the applicable
Initial Resolution Period;
(b) for purposes of remediating a Material Defect with respect to
any Mortgage Loan that is not a Specially Serviced Loan at the
commencement of, and does not become a Specially Serviced Loan during, the
applicable Initial Resolution Period, the period commencing at the end of
the applicable Initial Resolution Period and ending on, and including, the
earlier of (i) the 90th day following the end of such Initial Resolution
Period and (ii) the 45th day following the applicable Mortgage Loan
Seller's receipt of written notice from the Master Servicer or the Special
Servicer of the occurrence of any Servicing Transfer Event with respect to
such Mortgage Loan subsequent to the end of such Initial Resolution
Period;
(c) for purposes of remediating a Material Defect with respect to
any Mortgage Loan that is a not a Specially Serviced Loan as of the
commencement of the applicable Initial Resolution Period, but as to which
a Servicing Transfer Event occurs during such Initial Resolution Period,
the period commencing at the end of the applicable Initial Resolution
Period and ending on, and including, the 90th day following the earlier of
the end of such Initial Resolution Period and the applicable Mortgage Loan
Seller's receipt of written notice from the Master Servicer or the Special
Servicer of the occurrence of such Servicing Transfer Event; and
(d) for purposes of remediating a Material Defect with respect to
any Mortgage Loan that is a Specially Serviced Loan as of the commencement
of the applicable Initial Resolution Period, zero (-0-) days; provided
that, if the applicable Mortgage Loan Seller did not receive written
notice from the Master Servicer or the Special Servicer of the relevant
Servicing Transfer Event as of the commencement of the applicable Initial
Resolution Period, then such Servicing Transfer Event shall be deemed to
have occurred during such Initial Resolution Period and clause (c) of this
definition will be deemed to apply.
The applicable Mortgage Loan Seller shall have an additional 90 days
beyond any cure period specified above to cure such Material Defect or Material
Beach; provided that, the Mortgage Loan Seller has commenced and is diligently
proceeding with the cure of such Material Defect or Material Breach and such
failure to cure is solely the result of a delay in the return of documents from
the local filing or recording authorities.
"Responsible Officer": Any officer of the Trustee assigned to the
Corporate Trust Office (and, in the event that the Trustee is the Certificate
Registrar or the Paying Agent, of the Certificate Registrar or the Paying Agent,
as applicable) with direct responsibility for the administration of this
Agreement and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject, and, in the case of any certification
required to be signed by a Responsible Officer, such an officer whose name and
specimen signature appears on a list of corporate trust officers furnished to
the Master Servicer by the Trustee, as such list may from time to time be
amended.
"Restricted Certificate": As defined in Section 5.02(k).
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which the Certificates are first
offered to persons other than the Initial Purchasers and any other distributor
(as 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 Global Certificate": Each of the Class XS, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P and Class Q
Certificates issued as such on the Closing Date.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or its successor in interest.
"Xxxxxxxx-Xxxxx Act": 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 10.08.
"Securities Legend": With respect to each Residual Certificate or
any Individual Certificate, the legend set forth in, and substantially in the
form of, Exhibit F hereto.
"Serviced B Loan": Each of the Ala Moana Portfolio B Loans, the Two
Gateway B Loan, the 0000 Xxxxxx Xxxxxx B Loan and/or the Spectrum Centre B Loan,
as applicable and as the context may require.
"Serviced B Loan Noteholder": As applicable, the Ala Moana Portfolio
B Loan Noteholder, the Two Gateway B Loan Noteholders, the 0000 Xxxxxx Xxxxxx B
Loan Noteholder and the Spectrum Center B Loan Noteholder..
"Serviced Companion Loan": Each of the Serviced B Loans, the Ala
Moana Portfolio Companion Loans and the Fair Lakes Office Portfolio Companion
Loan, as applicable and as the context may require.
"Serviced Companion Loan Noteholder": A holder of a Serviced
Companion Loan.
"Serviced Companion Loan Noteholder Register": As defined in Section
3.32(b).
"Serviced Companion Loan Securitization Agreement": With respect to
any Serviced Companion Loan, any agreement under which any securities evidencing
interests in such Serviced Companion Loan are issued, as from time to time
amended, supplemented or modified.
"Serviced Companion Loan Trustee": With respect to any Serviced
Companion Loan, the trustee with respect to such Serviced Companion Loan
appointed and acting under the related Serviced Companion Loan Securitization
Agreement, if any.
"Serviced Whole Loan": Each of the Ala Moana Portfolio Whole Loan,
the Two Gateway Whole Loan, the 0000 Xxxxxx Xxxxxx Whole Loan, the Fair Lakes
Office Portfolio Whole Loan and the Spectrum Centre Whole Loan, as the context
may require and as applicable.
"Serviced Whole Loan Collection Account": With respect to each
Serviced Whole Loan, the separate account or subaccount created and maintained
by the Master Servicer pursuant to Section 3.05(h) on behalf of the
Certificateholders and the related Serviced Companion Loan Noteholders, which
shall be entitled with respect to the Two Gateway Whole Loan, the 0000 Xxxxxx
Xxxxxx Whole Loan and the Spectrum Centre Whole Loan, "Capmark Finance Inc., as
Master Servicer for the Certificateholders and the Companion Loan Noteholders
relating to, and for the benefit of LaSalle Bank National Association, as
Trustee, in trust for the Holders of, Deutsche Mortgage & Asset Receiving
Corporation, CD 2006-CD3 Commercial Mortgage Pass-Through Certificates, Serviced
Whole Loan Collection Account," and, with respect to the Ala Moana Portfolio
Whole Loan and the Fair Lakes Office Portfolio Whole Loan, "Wachovia Bank,
National Association, as Master Servicer for the Certificateholders and the
Companion Loan Noteholders relating to, and for the benefit of LaSalle Bank
National Association, as Trustee, in trust for the Holders of, Deutsche Mortgage
& Asset Receiving Corporation, CD 2006-CD3 Commercial Mortgage Pass-Through
Certificates, Serviced Whole Loan Collection Account." Amounts in any Serviced
Whole Loan Collection Account applicable to the related Serviced Companion Loans
shall not be assets of the Trust Fund, but instead shall be held by the Master
Servicer on behalf of the Trust Fund (in respect of amounts reimbursable
therefrom) and, the related Serviced Companion Loan Noteholders. Any such
account or subaccount shall be an Eligible Account.
"Serviced Whole Loan Remittance Amount": For each Due Date that the
Master Servicer is required to make a distribution to a Serviced Companion Loan
Noteholder pursuant to Section 3.05(i) and with respect to each Serviced Whole
Loan and related Mortgaged Property (if it becomes an REO Property), any amount
received by the Master Servicer (or, with respect to an REO Property, the
Special Servicer) during the related Collection Period that is payable to the
Serviced Companion Loan Noteholder pursuant to the related Co-Lender Agreement
or to be remitted to the Collection Account.
"Serviced Whole Loan REO Account": As defined in Section 3.17(b).
"Service(s)(ing)": 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 referenced in 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.
"Servicer Prepayment Interest Shortfall": As defined in Section
3.19(c).
"Servicer Remittance Date": With respect to any Distribution Date,
the Business Day preceding such Distribution Date.
"Servicing Compensation": With respect to any Collection Period, the
related Servicing Fee, Net Prepayment Interest Excess, if any, and any other
fees, charges or other amounts payable to the Master Servicer under this
Agreement for such period.
"Servicing Criteria": The criteria set forth in paragraph (d) of
Item 1122 of Regulation AB as such may be amended from time to time.
"Servicing Fee": With respect to each Mortgage Loan and any Serviced
Companion Loan (other than the Spectrum Centre B Loan), and for any Distribution
Date, an amount per Interest Accrual Period equal to the product of (i) the
respective Servicing Fee Rate and (ii) the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the immediately preceding Collection Period
(without giving effect to payments of principal on such Mortgage Loan or
Serviced Companion Loan on such Due Date). The Servicing Fee shall be calculated
in accordance with the provisions of Section 1.02(a).
"Servicing Fee Rate": With respect to each Mortgage Loan, the sum of
the Master Servicing Fee Rate and the related Primary Servicing Fee Rate, if
any, which rates per annum are set forth on Exhibit B-2 to this Agreement. With
respect to (i) the 0000 Xxxxxx Xxxxxx X Loan, .02%, (ii) the Two Gateway B Loan,
..02%, (iii) the ShopKo Portfolio Companion Loans, .01%, (iv) the Fairlakes
Office Portfolio Companion Loan, .01%, (v) the Ala Moana Portfolio B Loans,
..01%, (vi) the Ala Moana Portfolio Companion Loans, .01% and (vii) with respect
to the Spectrum Centre B Loan, 0%.
"Servicing File": As defined in the related Mortgage Loan Purchase
Agreement.
"Servicing Function Participant": Any Person, other than the Master
Servicer, the Special Servicer and the Trustee, that, within the meaning of Item
1122 of Regulation AB, is performing activities that address the Servicing
Criteria, unless such Person's activities relate only to 5% or less of the
Mortgage Loans (based on their Stated Principal Balance).
"Servicing Officer": Any officer or employee of the Master Servicer
or the Special Servicer, as applicable, involved in, or responsible for, the
administration and servicing of the Mortgage Loans or, Serviced 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 by the Master Servicer or the Special
Servicer, as applicable, as such list may from time to time be amended.
"Servicing Standard": With respect to (X) Master Servicer No. 2 or
the Special Servicer, shall mean to diligently service and administer the
Mortgage Loans and the Serviced Whole Loans for which each is responsible in the
best interests of and for the benefit of all of the Certificateholders and, with
respect to each Serviced Whole Loan, for the benefit of the Serviced Companion
Loan Noteholders (as a collective whole, but giving due consideration to the
subordinate nature of any B Loan as determined by Master Servicer No. 2 or the
Special Servicer, as the case may be, in the exercise of its reasonable
judgment) in accordance with applicable law, the terms of this Agreement, the
terms of the related Co-Lender Agreement, as applicable, and the Mortgage Loans
or Serviced Whole Loans, as applicable, and to the extent not inconsistent with
the foregoing, in accordance with the higher of the following standards of care:
(a) the same manner in which, and with the same care, skill,
prudence and diligence with which Master Servicer No. 2 or the Special
Servicer, as the case may be, services and administers similar mortgage
loans for other third-party portfolios, giving due consideration to the
customary and usual standards of practice of prudent institutional
commercial and multifamily mortgage lenders servicing their own mortgage
loans with a view to the maximization of timely recovery of principal and
interest on a net present value basis on the Mortgage Loans, Serviced
Whole Loans or Specially Serviced Loans, as applicable, and the best
interests of the Trust and the Certificateholders and, with respect to any
Serviced Whole Loan, the related Serviced Companion Loan Noteholders (as a
collective whole, but giving due consideration to the subordinate nature
of any B Loan as determined by Master Servicer No. 2 or the Special
Servicer, as the case may be, in its reasonable judgment); and
(b) the same care, skill, prudence and diligence with which Master
Servicer No. 2 or the Special Servicer, as the case may be, services and
administers commercial and multifamily mortgage loans owned by Master
Servicer No. 2 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, Serviced Whole Loans or
Specially Serviced Loans, as applicable, and the best interests of the
Trust and the Certificateholders and, with respect to any Serviced Whole
Loan, the related Serviced Companion Loan Noteholders (as a collective
whole, but giving due consideration to the subordinate nature of any B
Loan as determined by Master Servicer No. 2 or the Special Servicer, as
the case may be, in its reasonable judgment),
but without regard to (a) any relationship that Master Servicer No. 2 or the
Special Servicer, as the case may be, or any Affiliate of Master Servicer No. 2
or the Special Servicer, may have with the related Borrower, any Mortgage Loan
Seller, any other party to this Agreement or any Affiliate of the foregoing; (b)
the ownership of any Certificate or any Serviced Companion Loan by Master
Servicer No. 2 or the Special Servicer, as the case may be, or any Affiliate of
Master Servicer No. 2 or the Special Servicer; (c) Master Servicer No. 2 's
obligation to make Advances; (d) Master Servicer No. 2 's or the Special
Servicer's, as the case may be, right to receive compensation for its services
hereunder or with respect to any particular transaction; (e) the ownership,
servicing or management for others of any other mortgage loans or mortgaged
properties by Master Servicer No. 2 or the Special Servicer or any Affiliate of
Master Servicer No. 2 or the Special Servicer, as applicable; (f) any debt that
Master Servicer No. 2 or the Special Servicer or any Affiliate of Master
Servicer No. 2 or the Special Servicer, as applicable, has extended to any
Borrower or an Affiliate of any Borrower (including, without limitation, any
mezzanine financing); and (g) any obligation of Master Servicer No. 2 , or an
affiliate thereof, to repurchase or substitute for a Mortgage Loan as Mortgage
Loan Seller; and
(Y) with respect to the General Master Servicer, the General Master Servicer is
required to diligently service and administer the Mortgage Loans (other than the
ShopKo Portfolio Loan), and the Serviced Whole Loans on behalf of, and in the
best interest of, and for the benefit of, the Certificateholders, and, with
respect to each Serviced Whole Loan, for the benefit of the holder(s) of the
related Serviced Companion Loan(s) (as a collective whole as determined by the
Master Servicer in its good faith and reasonable judgment) in accordance with
the terms of any related intercreditor agreement, the related Mortgage Loan
documents, the Pooling and Servicing Agreement and applicable law, and, to the
extent consistent with the foregoing: (a) with the same care, skill and
diligence as is normal and usual in the General Master Servicer's servicing
activities on behalf of third parties or on behalf of itself, whichever is
higher, with respect to comparable mortgage loans, (b) with a view to the timely
collection of all scheduled payments of principal and interest on the Mortgage
Loans and (c) without regard to: (i) any relationship that the General Master
Servicer may have with a related borrower; (ii) ownership of any Certificate or
Serviced Companion Loan or related mezzanine loan by it or any of its
affiliates; (iii) its obligations to make Advances or to incur servicing
expenses; or (iv) the adequacy of its compensation for its services, or its
right to receive reimbursement of costs.
"Servicing Transfer Event": An event specified in the definition of
Specially Serviced Loan.
"ShopKo Portfolio Companion Loans": As defined in the Preliminary
Statement.
"ShopKo Portfolio Companion Loan Noteholder": The holders of the
Notes for the ShopKo Portfolio Companion Loans.
"ShopKo Portfolio Intercreditor Agreement": That certain co-lender
agreement, dated as of May 31, 2006 by Citigroup Global Capital Markets Realty
Corp., as note A1 lender, note A3 lender and note A5 lender, and BCRE Capital
Real Estate Inc., as note A2 lender, note A4 lender and note A6 lender, as from
time to time amended, supplemented or modified.
"ShopKo Portfolio Mortgage Loan": As defined in the Preliminary
Statement.
"ShopKo Portfolio Required Holders": The lenders (or their
designees) then holding greater than 50% of the then-aggregate outstanding
principal balance of the ShopKo Portfolio Mortgage Loan and the ShopKo Portfolio
Companion Loans.
"ShopKo Portfolio Whole Loan": As defined in the Preliminary
Statement.
"Similar Law": As defined in Section 5.02(k) hereof.
"Small Loan Appraisal Estimate": With respect to any Mortgage Loan
having a Stated Principal Balance of less than $2,000,000, the Special
Servicer's good faith estimate of the value of such Mortgage Loan, as certified
to the Master Servicer by the Special Servicer.
"SNDA": As defined in Section 3.30(n)(1) hereof.
"Sole Certificateholder": Any Holder (or Holders, provided they act
in unanimity) holding 100% of the then outstanding Class XS, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q and Class
S Certificates or an assignment of the voting rights thereof; provided, however,
that the Certificate Balances of the Class A-1, Class A-1D, Class A-2, Class
A-3, Class A-AB, Class A-4, Class A-5, Class A-1A, Class A-1S, Class A-M, Class
A-J, Class B, Class C, Class D, Class E and Class F Certificates have been
reduced to zero.
"Special Servicer": X.X. Xxxxxx Company, Inc., a Virginia
corporation, or its successor in interest, or any successor special servicer
appointed as provided in Section 3.25, including without limitation any
successor special servicer appointed with respect to a specific Serviced Whole
Loan pursuant to Section 3.25. In the event that a Master Servicer is also the
Special Servicer hereunder, and the Master Servicer is terminated or resigns as
the Master Servicer hereunder, that Master Servicer shall be terminated as the
Special Servicer hereunder. In the event there is more than one Special Servicer
administering Specially Serviced Loans hereunder, each reference in this
Agreement to the "Special Servicer" shall be construed to apply to the Special
Servicer then servicing that particular Mortgage Loan or Serviced Whole Loan.
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicing Compensation": With respect to any Mortgage Loan,
any of the Special Servicing Fee, Workout Fee, Liquidation Fee and any other
fees, charges or other amounts which shall be due to the Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced
Loan (or REO Loan) for each calendar month (or portion thereof), the fraction of
the Special Servicing Fee Rate applicable to such month, or portion thereof
(determined using the same interest accrual methodology that is applied with
respect to the Mortgage Rate for such Mortgage Loan for such month) multiplied
by the Stated Principal Balance of such Specially Serviced Loan (subject, in the
case of the Spectrum Centre Whole Loan, to the terms of the Spectrum Centre
Intercreditor Agreement) as of the Due Date (without giving effect to all
payments of principal on such Specially Serviced Loan or REO Loan on such Due
Date) in the Collection Period prior to such Distribution Date (or, in the event
that a Principal Prepayment in full or an event described in clauses (i)-(vii)
under the definition of Liquidation Proceeds shall occur with respect to any
such Specially Serviced Loan or REO Loan on a date that is not a Due Date, on
the basis of the actual number of days to elapse from and including the most
recently preceding related Due Date to but excluding the date of such Principal
Prepayment or Liquidation Proceeds event in a month consisting of 30 days).
"Special Servicing Fee Rate": A rate equal to 0.25% per annum with
respect to each Specially Serviced Loan.
"Specially Serviced Loan": Subject to Section 3.26, any Mortgage
Loan (other than the ShopKo Portfolio Mortgage Loan) or Serviced Whole Loan with
respect to which:
(a) either (i) with respect to such Mortgage Loan or Serviced
Companion Loan other than a Balloon Loan, a payment default shall have
occurred on such Mortgage Loan or Serviced Companion Loan at its Maturity
Date or, if the Maturity Date of such Mortgage Loan or Serviced Companion
Loan has been extended in accordance herewith, a payment default occurs on
such Mortgage Loan or Serviced Companion Loan at its extended Maturity
Date or (ii) with respect to a Balloon Loan, a payment default shall have
occurred with respect to the related Balloon Payment (except in the case
where written evidence of a refinancing commitment is received prior to
the related maturity date that provides that such refinancing will occur
within 60 days of the balloon payment due date and that is otherwise
acceptable in form and substance to the Special Servicer and the
Controlling Class Representative prior to the date such balloon payment
was due, 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);
(b) any Monthly Payment (other than a Balloon Payment) is 60 days or
more delinquent;
(c) the date upon which the Master Servicer or Special Servicer
(with the consent of the Controlling Class Representative in the case of a
determination by the Special Servicer) determines that a payment default
or any other default under the applicable Loan Documents that (with
respect to such other default) would materially impair the value of the
Mortgaged Property as security for the Mortgage Loan and, if applicable,
Serviced Companion Loan or otherwise would materially adversely affect the
interests of Certificateholders and, if applicable, the holder of the
related Serviced Companion Loan and would continue unremedied beyond the
applicable grace period under the terms of the related Loan Documents (or,
if no grace period is specified for 60 days and provided that a default
that would give rise to an acceleration right without any grace period
will be deemed to have a grace period equal to zero) is imminent and is
not likely to be cured by the related Borrower within 60 days or, except
as provided in clause (a)(ii) above, in the case of a Balloon Payment, for
at least 30 days;
(d) the date upon which the related Borrower has become a subject of
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, provided
that if such decree or order has been dismissed, discharged or stayed
within 60 days thereafter, such Mortgage Loan or Serviced Whole Loan shall
no longer be a Specially Serviced Loan and no Special Servicing Fees shall
be payable with respect thereto;
(e) the date on which the related Borrower consents 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 Borrower of or relating to all or
substantially all of its property;
(f) the date on which related Borrower admits in writing its
inability to pay its debts generally as they become due, files a petition
to take advantage of any applicable insolvency or reorganization statute,
makes an assignment for the benefit of its creditors, or voluntarily
suspends payment of its obligations;
(g) a default, of which the Master Servicer or Special Servicer has
notice (other than a failure by such related Borrower to pay principal or
interest) and which in the opinion of the Master Servicer or Special
Servicer (in the case of the Special Servicer, with the consent of the
Controlling Class Representative) materially and adversely affects the
interests of the Certificateholders or any holder of a Serviced Companion
Loan, if applicable, occurs and remains unremedied for the applicable
grace period specified in the Loan Documents for such Mortgage Loan or
Serviced Whole Loan (or if no grace period is specified for those defaults
which are capable of cure, 60 days); or
(h) the date of which the Master Servicer or Special Servicer
receives notice of the foreclosure or proposed foreclosure of any lien on
the related Mortgaged Property;
provided, however, that such Mortgage Loan or Serviced Whole Loan will cease to
be a Specially Serviced Loan (each, a "Corrected Mortgage Loan") (i) with
respect to the circumstances described in clauses (a) and (b) above, when the
related Borrower thereunder has brought such Mortgage Loan or Serviced Whole
Loan current and thereafter made three consecutive full and timely Monthly
Payments, including pursuant to any workout of such Mortgage Loan or Serviced
Whole Loan, (ii) with respect to the circumstances described in clause (c), (d),
(e), (f) and (h) above, when such circumstances cease to exist in the good faith
judgment of the Special Servicer, and (iii) with respect to the circumstances
described in clause (g) above, when such default is cured; provided, in each
case, that at that time no circumstance exists (as described above) that would
cause such Mortgage Loan or Serviced Whole Loan to continue to be characterized
as a Specially Serviced Loan, provided, further, that a Servicing Transfer Event
shall not exist with respect to any Serviced Whole Loan if a cure event is being
exercised in accordance with the related Co-Lender Agreement or this Agreement.
Notwithstanding any provision of this Agreement to the contrary,
consistent with the applicable Servicing Standard, the servicing rights and
obligations of the Special Servicer with respect to the Spectrum Centre B Loan
will be limited pursuant to the terms of the Spectrum Centre Intercreditor
Agreement prior to, or after the discontinuance of, a "Material Default" (as
defined in Section 3(b) of the Spectrum Centre Intercreditor Agreement).
In the case of the ShopKo Portfolio Whole Loan (or any successor REO
Loan with respect thereto), it will be considered a "Specially Serviced Loan"
pursuant to the related definition under and in accordance with the CGMCT
2006-C4 Pooling and Servicing Agreement.
If a Servicing Transfer Event exists with respect to any Mortgage
Loan included in a Serviced Whole Loan, then it will also be deemed to exist
with respect to the related Serviced Companion Loans, and vice versa. If any
Mortgage Loan in a group of Cross-Collateralized Mortgage Loans becomes a
Specially Serviced Loan, each other Mortgage Loan in such group of
Cross-Collateralized Mortgage Loans shall also become a Specially Serviced Loan.
"Spectrum Centre B Loan": As defined in the Preliminary Statement.
"Spectrum Centre B Loan Noteholder": The holder of the Note for the
Spectrum Centre B Loan.
"Spectrum Centre Intercreditor Agreement": That certain
intercreditor agreement among noteholders, dated as of July 18, 2006 by Deutsche
Banc Mortgage Capital, L.L.C., as A Note Holder, and CBA-Mezzanine Capital
Finance, LLC, as B Note Holder, as from time to time amended, supplemented or
modified.
"Spectrum Centre Mortgage Loan": As defined in the Preliminary
Statement.
"Spectrum Centre Whole Loan": As defined in the Preliminary
Statement.
"Startup Day": In the case of the Upper-Tier REMIC and Lower-Tier
REMIC, the day designated as such pursuant to Section 2.06(a) hereof.
"Stated Principal Balance": With respect to any Mortgage Loan or
Serviced Whole Loan, on any date of determination, the principal balance as of
the Cut-off Date of such Mortgage Loan or Serviced Whole Loan (or in the case of
a Replacement Mortgage Loan, the outstanding principal balance as of the related
date of substitution and after application of all scheduled payments of
principal and interest due on or before the related Due Date in the month of
substitution, whether or not received), as reduced on each Distribution Date
(or, with respect to any Serviced Companion Loan, on the date the Master
Servicer remits payments to the holders of that Serviced Companion Loan) (to not
less than zero) by (i) all payments (or P&I Advances in lieu thereof) of, and
all other collections allocated as provided in Section 1.02 to, principal of or
with respect to such Mortgage Loan or Serviced Whole Loan that are distributed
to Certificateholders or Serviced Companion Loan Noteholder on such Distribution
Date (or, with respect to any Serviced Companion Loan, on the date the Master
Servicer remits payments to the holder of that Serviced Companion Loan) or
applied to any other payments required under this Agreement on or prior to such
date of determination, and (ii) any principal forgiven by the Special Servicer
and other principal losses realized in respect of such Mortgage Loan or Serviced
Whole Loan during the related Collection Period.
A Mortgage Loan or any related REO 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 Liquidation Proceeds, if any, are to be (or, if no
such Liquidation Proceeds are received, would have been) distributed to
Certificateholders. The Stated Principal Balance of any Mortgage Loan or
Serviced Whole Loan with respect to which the Master Servicer or Special
Servicer has made a Final Recovery Determination is zero.
"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 the Master
Servicer or a Servicing Function Participant.
"Substitution Shortfall Amount": In connection with the substitution
of one or more Replacement Mortgage Loans for one or more Removed Mortgage
Loans, the amount, if any, by which the Repurchase Price or aggregate Repurchase
Price, as the case may be, for such Removed Mortgage Loan(s) exceeds the initial
Stated Principal Balance or aggregate initial Stated Principal Balance, as the
case may be, of such Replacement Mortgage Loan(s).
"Sub-Servicer": Any Person engaged by either Master Servicer or the
Special Servicer to perform Servicing with respect to one or more Mortgage Loans
or REO Loans.
"Sub-Servicing Agreement": The written contract between either
Master Servicer or the Special Servicer, on the one hand, and any Sub-Servicer,
on the other hand, relating to servicing and administration of the Mortgage
Loans as provided in Section 3.01(c).
"Tax Returns": The federal income tax returns on IRS 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 by
the Trustee 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 federal
income tax return to be filed by the Trustee on behalf of the Grantor Trust due
to its classification as a grantor trust under subpart E, Part I of subchapter J
of the Code, together with any and all other information, reports or returns
that may be required to be furnished to the Certificateholders or filed with the
IRS or any other governmental taxing authority under any applicable provisions
of federal law or Applicable State and Local Tax Law.
"Terminated Party": As defined in Section 7.01(c).
"Terminating Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"Third Party Appraiser": Any party performing an Appraisal.
"Time of Sale": At or prior to the time when sales to purchasers of
the Certificates were first made, which was approximately 4:50 p.m. on October
23, 2006.
"Time of Sale Information": Collectively, the Depositor's free
writing prospectus dated as of October 9, 2006, the Depositor's free writing
prospectus dated as of October 18, 2006, and the Depositor's free writing
prospectus dated as of October 23, 2006.
"Total Loan Report": A report substantially in the form of, and
containing the information called for in, the downloadable form of the "CMSA
Total Loan 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.
"Transfer": Any direct or indirect transfer or other form of
assignment of any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust" or "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; (ii) all scheduled or unscheduled payments on or collections
in respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits and any
security agreements (to the extent of the Trust Fund's interest therein); (vi)
any indemnities or guaranties given as additional security for any Mortgage
Loans (to the extent of the Trust Fund's interest therein); (vii) all assets
deposited in the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts,
and Reserve Accounts (to the extent of the Trust Fund's interest therein),
(viii) Loss of Value Reserve Fund amounts on deposit in the Collection Account
attributable to the Mortgage Loans as identified on the Trust Ledger, the
Serviced Whole Loan Collection Accounts (to the extent of the Trust Fund's
interest therein and specifically excluding any interest of any Serviced
Companion Loan Noteholder therein), the Distribution Accounts, any Excess
Liquidation Proceeds Account (to the extent of the Trust Fund's interest therein
and specifically excluding any interest of any Serviced Companion Loan
Noteholder therein), the Interest Reserve Account, any REO Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), including any
reinvestment income, as applicable; (ix) any environmental indemnity agreements
relating to the Mortgaged Properties; (x) all insurance policies with respect to
the Mortgage Loans and the Mortgaged Properties (to the extent of the Trust
Fund's interest therein); (xi) the rights and remedies under the Mortgage Loan
Purchase Agreements relating to document delivery requirements with respect to
the Mortgage Loans and the representations and warranties of the related
Mortgage Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower).
"Trust Ledger": Amounts deposited in any Collection Account
attributable to the Mortgage Loans, which are maintained pursuant to Section
3.05(a) and held on behalf of the Trustee on behalf of the Certificateholders.
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee": LaSalle Bank National Association, a national banking
association, in its capacity as Trustee, or its successor in interest, or any
successor Trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) the Trustee Fee Rate multiplied by (ii) the Stated Principal Balance of such
Mortgage Loan as of the Due Date in the immediately preceding Collection Period
(without giving effect to payments of principal on such Mortgage Loan on such
Due Date). The Trustee Fee shall be calculated in accordance with the provisions
of Section 1.02(a).
"Trustee Fee Rate": A rate equal to 0.00% per annum.
"Two Gateway B Loan": As defined in the Preliminary Statement.
"Two Gateway B Loan Noteholder": The holder of the Note for the Two
Gateway B Loan.
"Two Gateway Control Appraisal Event": As defined in the Two Gateway
Intercreditor Agreement.
"Two Gateway Intercreditor Agreement": That certain co-lender
agreement, dated as of August 24, 2006 by and between Capmark Bank, as note A
lender, and Capmark Finance Inc., as note B lender, as from time to time
amended, supplemented or modified.
"Two Gateway Mortgage Loan": As defined in the Preliminary
Statement.
"Two Gateway Whole Loan": As defined in the Preliminary Statement.
"Uncertificated Accrued Interest": With respect to the Lower-Tier
Regular Interest, for any Distribution Date, one month's interest at the
Lower-Tier REMIC Remittance Rate applicable to such Lower-Tier Regular Interest
for such Distribution Date, accrued on the Lower-Tier REMIC Principal Balance of
such Lower-Tier Regular Interest outstanding immediately prior to such
Distribution Date. The Uncertificated Accrued Interest in respect of any
Lower-Tier Regular Interest for any Distribution Date shall be deemed to have
accrued during the applicable Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any
Lower-Tier Regular Interest, for any Distribution Date, the Uncertificated
Accrued Interest in respect of such Lower-Tier Regular Interest for such
Distribution Date, reduced (to not less than zero) by the product of (i) the Net
Aggregate Prepayment Interest Shortfall, if any, for such Distribution Date,
multiplied by (ii) a fraction, the numerator of which is the Uncertificated
Accrued Interest in respect of such Lower-Tier Regular Interest for such
Distribution Date, and the denominator of which is the aggregate Uncertificated
Accrued Interest in respect of all the Lower-Tier Regular Interests for such
Distribution Date.
"Underwriters": DBS, CGM, Capmark Securities Inc., Wachovia
Securities Capital Markets, LLC, BCRE Capital Inc. and Banc of America
Securities LLC or their respective successors in interest.
"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 Section 3.06(b) or Section
3.06(c), as applicable, but that has not been recovered from the related
Borrower or otherwise from collections on or the proceeds of the Mortgage Loan
or the applicable Serviced Whole Loan or REO Property in respect of which the
Advance was made.
"Unscheduled Payments": With respect to a Mortgage Loan and a
Collection Period, all Net Liquidation Proceeds, Net Condemnation Proceeds and
Net Insurance Proceeds payable under such Mortgage Loan, the Repurchase Price of
any Mortgage Loan that is repurchased or purchased pursuant to Sections 2.03(d),
3.18 or 9.01, the Substitution Shortfall Amount with respect to any substitution
pursuant to Section 2.03(f) and any other payments under or with respect to such
Mortgage Loan not scheduled to be made, including Principal Prepayments received
by the Master Servicer (but excluding Prepayment Premiums or Yield Maintenance
Charges, if any) during such Collection Period.
"Updated Appraisal": An Appraisal of a Mortgaged Property or REO
Property, as the case may be, conducted subsequent to any appraisal performed on
or prior to the Cut-off Date and in accordance with Appraisal Institute
standards, the costs of which shall be paid as a Property Advance by the Master
Servicer or, on an emergency basis in accordance with Section 3.24(b), the
Special Servicer, as applicable. Updated Appraisals shall be conducted by an
Independent MAI appraiser selected by the Special Servicer.
"Updated Valuation": With respect to a Mortgage Loan having a Stated
Principal Balance of $2,000,000 or higher, an Updated Appraisal. With respect to
a Mortgage Loan having a Stated Principal Balance of less than $2,000,000, an
updated Small Loan Appraisal Estimate.
"Upper-Tier Distribution Account": The segregated trust account or
sub-account created and maintained by the Trustee pursuant to Section 3.05(g),
which shall be entitled "LaSalle Bank National Association, as Trustee, in trust
for Holders of Deutsche Mortgage & Asset Receiving Corporation, CD 2006-CD3
Commercial Mortgage Pass-Through Certificates, Upper-Tier Distribution Account"
and which must be an Eligible Account or a subaccount of an Eligible Account.
The Upper-Tier Distribution Account shall be an asset of the Upper-Tier REMIC.
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Lower-Tier Regular Interests and amounts held from time to
time in the Upper-Tier Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation, 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 have elected to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificateholder or Class of
Certificateholders. At all times during the term of this Agreement, the
percentage of Voting Rights assigned to each Class shall be: (a) 98% to be
allocated among the Certificateholders of the respective Classes of Principal
Balance Certificates in proportion to the Certificate Balances of their
Certificates and (b) 2% to be allocated among the Certificateholders of the
Class XS and Class XP Certificates (allocated to the Class XS and Class XP
Certificates on a pro rata basis based on their respective outstanding Notional
Amounts at the time of determination). Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests in such Class evidenced by their
respective Certificates.
"Watch List": For any Determination Date, a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Servicer Watch List" available as of the Closing Date on the CMSA
Website, or in such other form for the presentation of such information and
containing such additional information as may from time to time be promulgated
as recommended 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 "Servicer Watch List" available
as of the Closing Date on the CMSA Website, is reasonably acceptable to the
Master Servicer or the Special Servicer, as applicable.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to
any Distribution Date, a per annum rate equal to the fraction (expressed as a
percentage) the numerator of which is the sum for all Mortgage Loans of the
product of (i) the Net Mortgage Pass-Through Rate for each such Mortgage Loan as
of the immediately preceding Distribution Date and (ii) the Stated Principal
Balance of each such Mortgage Loan and the denominator of which is the sum of
the Stated Principal Balances of all such Mortgage Loans as of the immediately
preceding Distribution Date.
"Whole Loan": Each of the Ala Moana Portfolio Whole Loan, the Two
Gateway Whole Loan, the 0000 Xxxxxx Xxxxxx Whole Loan, the Fair Lakes Office
Portfolio Whole Loan, the ShopKo Portfolio Whole Loan and the Spectrum Centre
Whole Loan, as the context may require and as applicable.
"Withheld Amount": With respect to each Distribution Date occurring
in (i) January of each calendar year that is not a leap year and (ii) February
of each calendar year, unless, in either case, such Distribution Date is the
final Distribution Date, an amount equal to one day's interest at the Mortgage
Rate as of the Due Date (less the Servicing Fee Rate) on the respective Stated
Principal Balance of each Mortgage Loan that does not accrue interest on the
basis of a 360-day year of 12 30-day months as of the Due Date in the month
preceding the month in which such Distribution Date occurs, to the extent that a
Monthly Payment or a P&I Advance is made in respect thereof. The Withheld Amount
for each applicable Distribution Date for each Mortgage Loan that does not
accrue interest on a 30/360 basis will be equal to 1/31 of the interest accrued
in respect of the immediately preceding Due Date, to the extent a Monthly
Payment or P&I Advance is made in respect thereof.
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan or, with respect to Property Advances, any Serviced Whole Loan,
the amount of any Advance made with respect to such Mortgage Loan or Serviced
Whole Loan on or before the date such Mortgage Loan or Serviced Whole 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 is not reimbursed to the Person who made such Advance on or before
the date, if any, on which such Mortgage Loan or Serviced Whole Loan, as the
case may be, becomes a Corrected Mortgage Loan and (ii) the amount of such
Advance becomes an obligation of the related Borrower to pay such amount under
the terms of the modified Loan Documents.
"Workout Fee": An amount equal to 1.0% of each collection of
interest and principal (including scheduled payments, prepayments (provided that
a repurchase or substitution by a Mortgage Loan Seller of a Mortgage Loan due to
a Material Defect or a Material Breach shall not be considered a prepayment for
purposes of this definition), Balloon Payments and payments at maturity, but
excluding Excess Interest) received on a Specially Serviced Loan that becomes a
Corrected Mortgage Loan (other than with respect to the Ala Moana Portfolio
Whole Loan if it becomes a Specially Serviced Loan that becomes a Corrected
Mortgage Loan, for which the workout fee rate shall equal 0.25%) for so long as
it remains a Corrected Mortgage Loan, pursuant to Section 3.12(c). For the
avoidance of doubt, the Mortgage Loan Seller will be required to pay a Workout
Fee in connection with a repurchase or substitution to the extent the Special
Servicer was entitled to such a fee and such fee was unpaid immediately prior to
such repurchase or substitution or was previously paid by the Trust and was not
reimbursed by the related Borrower immediately prior to such repurchase or
substitution.
"Yield Maintenance Charge": With respect to any Mortgage Loan or
Serviced Whole Loan, the yield maintenance charge set forth in the related 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, the following provisions shall apply:
(a) All calculations of interest with respect to the Mortgage Loans
and Serviced Companion Loans (other than the Actual/360 Mortgage Loans) and of
Advances in respect thereof provided for herein shall be made on the basis of a
360-day year consisting of twelve 30-day months. All calculations of interest
with respect to the Actual/360 Mortgage Loans and of Advances provided in
respect thereof provided for herein shall be made as set forth in such Mortgage
Loans and, if applicable, Serviced Companion Loans, with respect to the
calculation of the related Mortgage Rate. The Servicing Fee and the Trustee Fee
for each Mortgage Loan or Serviced Whole Loan, as applicable, shall accrue on
the same basis as interest accrues on such Mortgage Loan or Serviced Whole Loan,
as applicable.
(b) Any Mortgage Loan or Serviced Whole Loan payment is deemed to be
received on the date such payment is actually received by the Master Servicer or
the Trustee; provided, however, that for purposes of calculating distributions
on the Certificates, Principal Prepayments with respect to any Mortgage Loan or
Serviced Whole Loan, such Principal Prepayments are deemed to be received on the
date they are applied in accordance with Section 3.01(b) to reduce the unpaid
principal balance of such Mortgage Loan or Serviced Whole Loan on which interest
accrues.
(c) Except as otherwise provided in the related Loan Documents or
Co-Lender Agreement, any amounts received in respect of a Mortgage Loan or
Serviced Whole Loan as to which a default has occurred and is continuing in
excess of Monthly Payments shall be applied to Default Interest and other
amounts due on such Mortgage Loan or Serviced Whole Loan prior to the
application to late fees.
(d) Allocations of payments between a Mortgage Loan and the related
Serviced Companion Loan(s) in a Whole Loan shall be made in accordance with the
related Co-Lender Agreement.
(e) If an expense under this Agreement relates in the reasonable
judgment of the Master Servicer, the Special Servicer, the Trustee or the Paying
Agent, as applicable, primarily to the administration of the Trust Fund, either
Trust REMIC or the Grantor Trust or to any determination respecting the amount,
payment or avoidance of any tax under the REMIC Provisions or the actual payment
of any REMIC tax or expense, or Grantor Trust tax or expense or this Agreement
states that any expense is solely "an expense of the Trust Fund" or words of
similar import, then such expense shall not be allocated to, deducted or
reimbursed from, or otherwise charged against any Serviced Companion Loan
Noteholder and such Serviced Companion Loan Noteholder shall not suffer any
adverse consequences as a result of the payment of such expense.
(f) All amounts collected on any Mortgage Loan or Serviced Whole
Loan in the form of payments from the related Borrower, Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds shall be applied to amounts due
and owing under the related Note and Mortgage (including, without limitation,
for principal and accrued and unpaid interest) in accordance with the express
provisions of the related Note and Mortgage (and, with respect to any Serviced
Whole Loan, the related Co-Lender Agreement) and, in the absence of such express
provisions, shall (after provision for amounts to be applied to the payment of,
or to be reimbursed to the Master Servicer, the Special Servicer or the Trustee
for the reimbursement of any outstanding unreimbursed Advances on such Mortgage
Loan or Serviced Whole Loan and interest thereon) be applied: first, as a
recovery of principal then due and owing, in an amount equal to the
Workout-Delayed Reimbursement Amounts or Nonrecoverable Advances, in each case,
that were paid from collections on the Mortgage Loans or the Serviced Companion
Loans, as applicable, and resulted in principal distributed to the
Certificateholders being reduced as a result of clause (ii) in the definition of
"Principal Distribution Amount" or affected remittances to the related Serviced
Companion Loan Noteholders; second, as a recovery of accrued and unpaid interest
on such Mortgage Loan or Serviced Whole Loan, as applicable, at the related
Mortgage Rate in effect from time to time to but not including the Due Date in
the related Collection Period of receipt; third, as a recovery of any remaining
principal of such Mortgage Loan or Serviced Whole Loan including by reason of
acceleration of the Mortgage Loan or the Serviced Whole Loan following a default
thereunder (or, if any Liquidation Proceeds are received upon the liquidation of
such Mortgage Loan or any Serviced Whole Loan, as a recovery of principal to the
extent of its entire remaining Stated Principal Balance) or if the related
Co-Lender Agreement, if any, so requires; fourth, in accordance with the
Servicing Standard, as a recovery of any Penalty Charges, Prepayment Premiums
and Yield Maintenance Charges; and fifth, as a recovery of any other amounts
then due and owing under such Mortgage Loan or Serviced Whole Loan, as
applicable. Notwithstanding the preceding, such provisions shall not be deemed
to affect the priority of distributions of payments set forth in the related
Co-Lender Agreement. To the extent that such amounts are paid by a party other
than a Borrower, unless otherwise specified in this Agreement, 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 Proceeds, Condemnation Proceeds or
Liquidation Proceeds) and then paid by the Borrower under the related Mortgage
Loan and Serviced Whole Loan, as applicable, in accordance with the second
preceding sentence. Amounts collected on any REO Loan shall be deemed to be
applied as provided in Section 1.02(g).
(g) Workout-Delayed Reimbursement Amounts and Nonrecoverable
Advances with respect to an REO Loan, in each case, that were paid from
collections on the Mortgage Loans or the Serviced Whole Loans, as applicable,
and resulted in principal distributed to the Certificateholders being reduced as
a result of clause (ii) in the definition of "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 Master Servicer or the Special Servicer for the payment of,
the costs of operating, managing, selling, leasing and maintaining the related
REO Property) shall (after provision for amounts to be applied to the payment
of, or to be reimbursed (1) to the Master Servicer or the Special Servicer for
the payment of, the costs of operating, managing and maintaining the related REO
Property and (2) to the Master Servicer, the Special Servicer or the Trustee for
the reimbursement of any outstanding unreimbursed Advances on such REO Loan (and
predecessor Loan) and interest thereon) be treated: first, to principal, in an
amount equal to the Workout-Delayed Reimbursement Amounts and Nonrecoverable
Advances with respect to such REO Loan, in each case, that were paid from
collections on the Mortgage Loans or the Serviced Whole Loans, as applicable,
and resulted in principal distributed to the Certificateholders being reduced as
a result of clause (ii) in the definition of "Principal Distribution Amount";
second, 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 related Collection Period of receipt; third, as a recovery of any
remaining principal of such REO Loan to the extent of its entire Stated
Principal Balance; and fourth, in accordance with the Servicing Standard, 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) any other amounts, in that order. With respect to the Serviced
Whole Loans, the foregoing shall be subject to the terms of the related
Co-Lender Agreement.
(h) 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.
Section 1.03 Certain Constructions. For purposes of this Agreement,
references to the most or next most subordinate Class of Certificates
outstanding at any time shall mean the most or next most subordinate Class of
Certificates then outstanding as among the Class A-1, Class A-1D, Class A-2,
Class A-3, Class A-AB, Class A-4, Class A-5, Class A-1A, Class A-1S, 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 O, Class P, Class Q and Class S
Certificates. For such purposes, the Class A-1, Class A-1D, Class A-2, Class
A-3, Class A-AB, Class A-4, Class A-5, Class A-1A and Class A-1S Certificates
collectively shall be considered to be one Class. For purposes of this
Agreement, each Class of Certificates, other than the Class LR and Class R
Certificates, shall be deemed to be outstanding only to the extent its
respective Certificate Balance has not been reduced to zero. For purposes of
this Agreement, the Class T, Class R and Class LR Certificates shall be
outstanding so long as the Trust Fund has not been terminated pursuant to
Section 9.01 or any other Class of Certificates remains outstanding. For
purposes of this Agreement, each of the Class XS and Class XP Certificates shall
be deemed to be outstanding until their respective Notional Balances have been
reduced to zero.
Notwithstanding anything to the contrary contained herein, for
purposes of this Agreement, each reference to any action by the Master Servicer
or Special Servicer that is subject to the consent or approval of the Directing
Certificateholder or the Controlling Class Representative shall in each case be
further subject to the determination by the Master Servicer or Special Servicer
that taking or refraining from taking the action as proposed by the Directing
Certificateholder or Controlling Class Representative, or not taking such action
as proposed by the Master Servicer or Special Servicer if the Directing
Certificateholder or Controlling Class Representative fails to grant its consent
or approval to any action proposed to be taken by the Master Servicer or Special
Servicer, in each case, is consistent with the Servicing Standard. In each case,
(a) if the response by the Directing Certificateholder or Controlling Class
Representative hereunder is inconsistent with the Servicing Standard the Master
Servicer or the Special Servicer shall take such action as is consistent with
the Servicing Standard, and (b) if the Master Servicer or Special Servicer
determines that immediate action is necessary to protect the interests of the
Certificateholder and any related Companion Loan Noteholder (as a collective
whole), it may take such action without waiting for a response from the
Directing Certificateholder or Controlling Class Representative.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans; Assignment of Mortgage
Loan Purchase Agreements. (a) The Depositor, concurrently with the execution and
delivery hereof, does hereby establish a trust designated as "CD 2006-CD3
Mortgage Trust," appoint the Trustee as trustee of the Trust Fund and sell,
transfer, assign, set over and otherwise convey to the Trustee without recourse
(except to the extent herein provided) all the right, title and interest of the
Depositor in and to the Mortgage Loans, including all rights to payment in
respect thereof, except as set forth below, and any security interest thereunder
(whether in real or personal property and whether tangible or intangible) in
favor of the Depositor, and a security interest in all Reserve Accounts,
Lock-Box Accounts, Cash Collateral Accounts and all other assets to the extent
included or to be included in the Trust Fund for the benefit of the
Certificateholders and the Serviced Companion Loan Noteholders. Such transfer
and assignment includes all interest and principal due on or with respect to the
Mortgage Loans after the Cut-off Date and in a case of a Mortgage Loan included
in a Whole Loan, is subject to the related Co-Lender Agreement. The Depositor,
concurrently with the execution and delivery hereof, does also hereby transfer,
assign, set over and otherwise convey to the Trustee without recourse (except to
the extent provided herein) all the right, title and interest of the Depositor
in, to and under the Mortgage Loan Purchase Agreements as provided therein
(excluding the representations, warranties and covenants in favor of the
Depositor set forth in clauses (viii) and (ix) of Section 4(b) of each Mortgage
Loan Purchase Agreement and the Depositor's rights and remedies with respect to
a breach thereof, and excluding the Depositor's rights and remedies under the
Indemnification Agreements) to the extent related to any Mortgage Loan. The
Depositor shall cause the Reserve Accounts, Cash Collateral Accounts and
Lock-Box Accounts relating to the Mortgage Loans to be transferred to and held
in the name of the Master Servicer on behalf of the Trustee as successor to the
Mortgage Loan Sellers.
In connection with such transfer and assignment, the Depositor does
hereby deliver to, and deposit with, the Custodian, with copies to the Master
Servicer and the Special Servicer, the following documents or instruments with
respect to each Mortgage Loan (other than the ShopKo Portfolio Mortgage Loan),
and each Serviced Companion Loan (which except for the Note referred to in
clause (i) below, relate to the Whole Loan) so assigned (provided, however, the
documents specified in items (xix) and (xx) shall be delivered only to the
Master Servicer):
(i) (A) the original Note, endorsed by the most recent endorsee
prior to the Trustee or, if none, by the Originator, without recourse,
either in blank or to the order of the Trustee in the following form: "Pay
to the order of LaSalle Bank National Association, as Trustee for the
registered holders of CD 2006-CD3 Commercial Mortgage Pass-Through
Certificates, without recourse"; and (B) in the case of each Serviced
Companion Loan, a copy of the executed Note for such Serviced Companion
Loan;
(ii) the original or a copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the Mortgage Loan or
Serviced Whole Loan to the most recent assignee of record thereof prior to
the Trustee, if any, in each case with evidence of recording indicated
thereon;
(iii) an original assignment of the Mortgage, in recordable form,
executed by the most recent assignee of record thereof prior to the
Trustee or, if none, by the Originator, either in blank or in favor of the
Trustee (in such capacity);
(iv) (A) an original or copy of any related security agreement (if
such item is a document separate from the Mortgage) and, if applicable,
the originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the Originator of the related Mortgage
Loan or Serviced Whole Loan to the most recent assignee of record thereof
prior to the Trustee, if any; and (B) an original assignment of any
related security agreement (if such item is a document separate from the
related Mortgage) executed by the most recent assignee of record thereof
prior to the Trustee or, if none, by the Originator, either in blank or in
favor of the Trustee (in such capacity), which assignment may be included
as part of the corresponding assignment of Mortgage referred to in clause
(iii) above;
(v) (A) stamped or certified copies of any UCC financing statements
and continuation statements which were filed in order to perfect (and
maintain the perfection of) any 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 Borrower at the Mortgaged Property (in each
case with evidence of filing or recording thereon) and which were in the
possession of the related Mortgage Loan Seller (or its agent) at the time
the Mortgage Files were delivered to the Custodian, together with original
UCC-2 or UCC-3 assignments of financing statements showing a complete
chain of assignment from the secured party named in such UCC-1 financing
statement to the most recent assignee of record thereof prior to the
Trustee, if any, and (B) if any such security interest is perfected and
the earlier UCC financing statements and continuation statements were in
the possession of the related Mortgage Loan Seller, an assignment of UCC
financing statement by the most recent assignee of record prior to the
Trustee or, if none, by the Originator, evidencing the transfer of such
security interest, either in blank or in favor of the Trustee;
(vi) the original or a copy of the Loan Agreement relating to such
Mortgage Loan, if any;
(vii) the original or a copy of the lender's title insurance policy
issued in connection with the origination of the Mortgage Loan, together
with all endorsements or riders (or copies thereof) that were issued with
or subsequent to the issuance of such policy, insuring the priority of the
Mortgage as a first lien on the Mortgaged Property, or a "marked up"
commitment to insure marked as binding and countersigned by the related
insurer or its authorized agent (which may be a pro forma or specimen
title insurance policy which has been accepted or approved as binding in
writing by the related title insurance company), or an agreement to
provide the same pursuant to binding escrow instructions executed by an
authorized representative of the title company;
(viii) (A) the original or a copy of the related Assignment of
Leases, Rents and Profits (if such item is a document separate from the
Mortgage) and, if applicable, 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
thereof prior to the Trustee, if any, in each case with evidence of
recording thereon; and (B) an original assignment of any related
Assignment of Leases, Rents and Profits (a "Reassignment of Assignment of
Leases, Rents and Profits") (if such item is a document separate from the
Mortgage), in recordable form, executed by the most recent assignee of
record thereof prior to the Trustee or, if none, by the Originator, either
in blank or in favor of the Trustee (in such capacity), which assignment
may be included as part of the corresponding assignment of Mortgage
referred to in clause (iii) above;
(ix) copies of the original environmental indemnity agreements and
environmental insurance policies pertaining to the Mortgaged Properties
required in connection with origination of the Mortgage Loans, if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Properties;
(xi) if the Borrower has a leasehold interest in the related
Mortgaged Property, the original ground lease or a copy thereof;
(xii) if the related assignment of contracts is separate from the
Mortgage, the original executed version of such assignment of contracts
and the assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral Account
Agreement is separate from the Mortgage or Loan Agreement, a copy thereof;
with respect to the Reserve Accounts, Cash Collateral Accounts and
Lock-Box Accounts, if any, a copy of the UCC-1 financing statements, if
any, submitted for filing with respect to the related Mortgage Loan
Seller's security interest in the Reserve Accounts, Cash Collateral
Accounts and Lock-Box Accounts and all funds contained therein (and UCC-3
assignments of financing statements assigning such UCC-1 financing
statements to the Trustee on behalf of the Certificateholders and with
respect to any Serviced Whole Loan on behalf of Certificateholders and the
related Serviced Companion Loan Noteholders);
(xiv) originals or copies of all assumption, modification, written
assurance and substitution agreements, with evidence of recording thereon
if appropriate, in those instances where the terms or provisions of the
Mortgage, the Note or any related security document have been modified or
the Mortgage Loan or Serviced Whole Loan has been assumed;
(xv) the original or a copy of any guaranty of the obligations of
the Borrower under the Mortgage Loan or Serviced Whole Loan together with,
as applicable, (A) the original or copies of any intervening assignments
of such guaranty showing a complete chain of assignment from the
Originator of the Mortgage Loan to the most recent assignee thereof prior
to the Trustee and (B) an original assignment of such guaranty executed by
the most recent assignee thereof prior to the Trustee or, if none, by the
Originator;
(xvi) the original or a copy of the power of attorney (with evidence
of recording thereon, if appropriate) granted by the related Borrower if
the Mortgage, Note or other document or instrument referred to above was
signed on behalf of the Borrower pursuant to such power of attorney;
(xvii) with respect to each Whole Loan, a copy of the related
Co-Lender Agreement;
(xviii) with respect to hospitality properties, a copy of the
franchise agreement, if any, an original or copy of the comfort letter, if
any, and any transfer documents with respect to any such comfort letter;
(xix) the original (or copy, if the original is held by the Master
Servicer pursuant to Section 2.01(d)) of any letter of credit for the
benefit of the lender securing such Mortgage Loan; and
(xx) the appropriate assignment or amendment documentation related
to the assignment to the Trust of any letter of credit securing such
Mortgage Loan (or copy thereof, if the original is held by the Master
Servicer pursuant to Section 2.01(d)) which entitles the Master Servicer
on behalf of the Trust to draw thereon.
With respect to the ShopKo Portfolio Mortgage Loan, the following
documents:
(i) the original executed Note for such ShopKo Portfolio Mortgage
Loan, endorsed by the most recent endorsee prior to the Trustee or, if
none, by the Originator, without recourse, either in blank or to the order
of the Trustee in the following form: "Pay to the order of LaSalle Bank
National Association, as Trustee for the registered holders of CD 2006-CD3
Commercial Mortgage Pass-Through Certificates, without recourse"; and
(ii) a copy of the executed ShopKo Portfolio Intercreditor
Agreement.
With respect to the Serviced Whole Loans, except for the Note
referred to in clause (i) of the preceding paragraph, only a single original set
of the Loan Documents specified above is required to be delivered. With respect
to any group of Cross-Collateralized Mortgage Loans, if there exists only one
original or certified copy of any document referred to in Sections 2.01(a)(i)
through 2.01(a)(xx) covering all of the Mortgage Loans in such group of
Cross-Collateralized Mortgage Loans, then the inclusion of such original or
certified copy in the Mortgage File for any of the Mortgage Loans constituting a
part of such group of Cross-Collateralized Mortgage Loans shall be deemed the
inclusion of such original or certified copy in the Mortgage File for each such
Mortgage Loan.
On or prior to the Closing Date, each Mortgage Loan Seller (other
than CFI) will retain a third party vendor reasonably satisfactory to the
Controlling Class Representative (which may be the Custodian) to, and CFI will
(with respect to the CFI Mortgage Loans), complete the assignment and
recordation of the related Loan Documents in the name of the Trustee on behalf
of the Certificateholders and with respect to a Serviced Whole Loan, the related
Serviced Companion Loan Noteholders. On or promptly following the Closing Date,
each Mortgage Loan Seller (other than CFI) will cause such third party vendor,
to the extent possession of recorded copies of each Mortgage and the documents
described in Sections 2.01(a)(iii), (v), (viii), (xiii) and (xiv) have been
delivered to it, and CFI will (with respect to the CFI Mortgage Loans), at the
expense of the Mortgage Loan Seller or CFI, as applicable, (1) to prepare and
record (a) each Assignment of Mortgage referred to in Section 2.01(a)(iii) which
has not yet been submitted for recording and (b) each Reassignment of Assignment
of Leases, Rents and Profits referred to in Section 2.01(a)(viii)(B) (if not
otherwise included in the related Assignment of Mortgage) which has not yet been
submitted for recordation; and (2) to prepare and file each UCC assignment of
financing statement referred to in Section 2.01(a)(v) or (xiii) which has not
yet been submitted for filing or recording. Each Mortgage Loan Seller (other
than CFI) will direct the related third party vendor to, and CFI will (with
respect to the CFI Mortgage Loans), promptly prepare and submit (and in no event
later than 30 Business Days following the receipt of the related documents in
the case of clause 1(a) above and 60 days following the receipt of the
applicable documents in the case of clauses 1(b) and 2 above) for recording or
filing, as the case may be, in the appropriate public recording or filing
office, each such document. In the event that any such document is lost or
returned unrecorded because of a defect therein, the related Mortgage Loan
Seller, at the expense of such Mortgage Loan Seller (as set forth in the related
Mortgage Loan Purchase Agreement), will promptly prepare a substitute document
for signature by the Depositor or itself, as applicable, and thereafter the
related Mortgage Loan Seller will cause each such document to be duly recorded
or filed. Each Mortgage Loan Seller will, promptly upon receipt of the original
recorded or filed copy (and in no event later than five Business Days following
such receipt) deliver such original to the Custodian (in the case of each UCC
financing statement or UCC assignment of financing statement, with evidence of
filing or recording thereon). Notwithstanding anything to the contrary contained
in this Section 2.01, in those instances where the public recording office
retains the original Mortgage, Assignment of Mortgage or Reassignment of
Assignment of Leases, Rents and Profits, if applicable, after any has been
recorded, the obligations hereunder of the Depositor shall be deemed to have
been satisfied upon delivery to the Custodian of a copy of such Mortgage,
Assignment of Mortgage or Reassignment of Assignment of Leases, Rents and
Profits, if applicable, certified by the public recording office to be a true
and complete copy of the recorded original thereof. Notwithstanding the
foregoing, there shall be no requirement to record any assignment to the Trustee
or to file any UCC-3 assignment of financing statement in those jurisdictions
where, in the written opinion of local counsel (which opinion shall not be an
expense of the Trust Fund or, any Serviced Companion Loan Noteholder) 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 Mortgage Loan Sellers, the
Master Servicer, the Special Servicer, any sub-servicer or the Depositor.
If a Mortgage Loan Seller cannot deliver, or cause to be delivered,
as to any Mortgage Loan, the original or a copy of the related lender's title
insurance policy referred to in Section 2.01(a)(vii) solely because such policy
has not yet been issued, the delivery requirements of this Section 2.01 will be
deemed to be satisfied as to such missing item, and such missing item will be
deemed to have been included in the related Mortgage File by delivery of a
binder marked as binding and countersigned by the title insurer or its
authorized agent (which may be a pro forma or specimen title insurance policy
which has been accepted or approved as binding in writing by the related title
insurance company) or an acknowledged closing instruction or escrow letter.
Copies of recorded or filed Assignments of Mortgage, Reassignments of Assignment
of Leases, Rents and Profits and UCC assignments of financing statements shall
be held by the Custodian.
Subject to the third preceding paragraph, all original documents
relating to the Mortgage Loans which are not delivered to the Custodian are and
shall be held by the Depositor, the Trustee or the Master Servicer (or a
sub-servicer on its behalf), as the case may be, in trust for the benefit of the
Certificateholders and, insofar as they also relate to the Serviced Companion
Loans, on behalf of and for the benefit of the related Serviced Companion Loan
Noteholders. In the event that any such original document, or in the case of a
Serviced Companion Loan, the original Note, is required pursuant to the terms of
this Section to be a part of a Mortgage File in order to effectuate the purposes
of this Agreement, such document shall be delivered promptly to the Custodian.
(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 Custodian, on or before the
Closing Date, the Note, for each Mortgage Loan so assigned or a copy of the Note
evidencing each related Serviced Companion Loan and, within 30 days following
the Closing Date, the remaining applicable documents referred to in Section
2.01(a) for each such Mortgage Loan or Serviced Companion Loan, in each case
with copies to the Master Servicer. If the applicable Mortgage Loan Seller
cannot deliver, or cause to be delivered, as to any Mortgage Loan, the original
Note, such Mortgage Loan Seller shall deliver a copy or duplicate original of
such Note, together with an affidavit certifying that the original thereof has
been lost or destroyed and an indemnification in favor of the Trustee. The
Trustee shall provide a certification (in the form attached hereto as Exhibit S)
on the Closing Date that all Notes or appropriate lost note affidavits have been
delivered (with any exceptions noted).
If the applicable Mortgage Loan Seller or the Depositor cannot
deliver, or cause to be delivered, as to any Mortgage Loan, the original or a
copy of any of the documents and/or instruments referred to in Section
2.01(a)(ii), Section 2.01(a)(v), Section 2.01(a)(viii)(A), Section 2.01(a)(xiv)
and Section 2.01(a)(xvi) and the UCC financing statements and UCC assignments of
financing statements referred to in Section 2.01(a)(xiii), with evidence of
recording or filing thereon, solely because of a delay caused by the public
recording or filing office where such document or instrument has been delivered
for recordation or filing, or because such original recorded or filed document
has been lost or returned from the recording or filing office and subsequently
lost, as the case may be, the delivery requirements of Section 2.01 shall be
deemed to have been satisfied as to such missing item, and such missing item
shall be deemed to have been included in the related Mortgage File, provided
that a copy of such document or instrument (without evidence of recording or
filing thereon, but certified (which certificate may relate to multiple
documents and/or instruments) by the applicable public recording or filing
office, the applicable title insurance company or the related Mortgage Loan
Seller to be a true and complete copy of the original thereof submitted for
recording or filing, as the case may be) has been delivered to the Custodian
within 45 days after the Closing Date, and either the original of such missing
document or instrument, or a copy thereof, with evidence of recording or filing,
as the case may be, thereon, is delivered to the Custodian within 180 days after
the Closing Date.
(c) Notwithstanding anything herein to the contrary, with respect to
the documents referred to in clause (xix) and clause (xx) of Section 2.01(a),
the Master Servicer shall hold the original of each such document in trust on
behalf of the Trust in order to draw on such letter of credit on behalf of the
Trust 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 by delivering the original of each such document to the Master
Servicer, who shall forward a copy of the applicable document to the Trustee.
The applicable Mortgage Loan Seller shall pay any costs of assignment or
amendment of such letter of credit (which amendment shall change the beneficiary
of the letter of credit to the Trust in care of the Master Servicer) required in
order for the Master Servicer to draw on such letter of credit on behalf of the
Trust. In the event that the documents specified in clause (xx) of Section
2.01(a) are missing because the related assignment or amendment documents have
not been completed, the applicable Mortgage Loan Seller shall take all necessary
steps to enable the Master Servicer to draw on the related letter of credit on
behalf of the Trust including, if necessary, drawing on the letter of credit in
its own name pursuant to written instructions from the Master Servicer and
immediately remitting such funds (or causing such funds to be remitted) to the
Master Servicer.
(d) The parties hereto acknowledge that the annual fees of each
Rating Agency shall be paid by the Depositor on the Closing Date for the ongoing
surveillance fees.
Section 2.02 Acceptance by Custodian and the Trustee. By its
execution and delivery of this Agreement, the Trustee acknowledges the
assignment to it of the Mortgage Loans in good faith without notice of adverse
claims and declares that the Custodian holds and will hold such documents and
all others delivered to it constituting the Mortgage File (to the extent the
documents constituting the Mortgage File are actually delivered to the
Custodian) for any Mortgage Loan assigned to the Trustee hereunder in trust,
upon the conditions herein set forth, for the use and benefit of all present and
future Certificateholders and Serviced Companion Loan Noteholders. The Custodian
agrees to review each Mortgage File within 120 days after the later of the
Closing Date or actual receipt to ascertain that all documents (other than
documents referred to in clause (xix) and clause (xx) of Section 2.01(a) which
shall be delivered to the Master Servicer and the documents referred to in
clauses (iii), (v)(B) and (viii)(B) of Section 2.01(a) and the assignments of
financing statements referred to in clause (xiii) of Section 2.01(a) which shall
be delivered for filing or recording by the Mortgage Loan Sellers as provided
herein) referred to in Section 2.01(a) above (in the case of the documents
referred to in Section 2.01(a)(iv), (v), (vi), (vii) (in the case of any
endorsement thereto), (viii), (ix) and (x) through (xx), as identified to it in
writing by the related Mortgage Loan Seller) and any original recorded documents
included in the delivery of a Mortgage File have been received, have been
executed, appear to be what they purport to be, purport to be recorded or filed
(as applicable) and have not been torn in any materially adverse manner or
mutilated or otherwise defaced, and that such documents relate to the Mortgage
Loans identified in the Mortgage Loan Schedule. In so doing, the Custodian may
rely on the purported due execution and genuineness of any such document and on
the purported genuineness of any signature thereon. If at the conclusion of such
review any document or documents constituting a part of a Mortgage File have not
been executed or received, have not been recorded or filed (if required), are
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule, appear
not to be what they purport to be or have been torn in any materially adverse
manner or mutilated or otherwise defaced, the Custodian shall promptly so notify
(in the form attached hereto as Exhibit R) the Trustee, the Controlling Class
Representative, the Depositor, the Master Servicer, the Special Servicer and the
related Mortgage Loan Seller by providing a written report, setting forth for
each affected Mortgage Loan, with particularity, the nature of the defective or
missing document. The Depositor shall or shall cause the related Mortgage Loan
Seller to deliver an executed, recorded or undamaged document, as applicable,
or, if the failure to deliver such document in such form has a material adverse
effect on the security provided by the related Mortgaged Property or the ability
of the Trustee to timely enforce any rights or remedies in respect of such
Mortgaged Property, the Depositor shall cause the related Mortgage Loan Seller
to cure, repurchase or substitute for the related Mortgage Loan in the manner
provided in Section 2.03. None of the Master Servicer, the Special Servicer or
the Trustee shall be responsible for any loss, cost, damage or expense to the
Trust Fund resulting from any failure to receive any document constituting a
portion of a Mortgage File noted on such a report or for any failure by the
Depositor to use its best efforts to deliver any such document.
Contemporaneously with its execution of this Agreement, the
Depositor shall cause each Mortgage Loan Seller to deliver, a power of attorney
to the Master Servicer and Special Servicer, at the direction of the Controlling
Class Representative or its assignees, to take such other action as is necessary
to effect the delivery, assignment and/or recordation of any documents and/or
instruments relating to any Mortgage Loan which have not been delivered,
assigned or recorded at the time required for enforcement by the Trust Fund.
Pursuant to the related Mortgage Loan Purchase Agreement, each of the Mortgage
Loan Sellers will be required to effect (at the expense of the applicable
Mortgage Loan Seller) the assignment and recordation of its respective Loan
Documents until the assignment and recordation of all such Loan Documents has
been completed.
In reviewing any Mortgage File pursuant to the second preceding
paragraph or Section 2.01, the Master Servicer shall have no responsibility to
cause the Custodian or Trustee to, and the Custodian or Trustee will have no
responsibility to, examine any opinions or determine whether any document is
legal, valid, binding or enforceable, whether the text of any assignment or
endorsement is in proper or recordable form (except, if applicable, to determine
if the Trustee is the assignee or endorsee), whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction,
whether a blanket assignment is permitted in any applicable jurisdiction, or
whether any Person executing any document or rendering any opinion is authorized
to do so or whether any signature thereon is genuine.
The Custodian shall hold that portion of the Trust Fund delivered to
the Custodian consisting of "instruments" (as such term is defined in Section
9-102 of the Uniform Commercial Code as in effect in Illinois on the date
hereof) in Illinois and, except as otherwise specifically provided in this
Agreement, shall not remove such instruments from Illinois, as applicable,
unless it receives an Opinion of Counsel (obtained and delivered at the expense
of the Person requesting the removal of such instruments from Minnesota) that in
the event the transfer of the Mortgage Loans to the Trustee is deemed not to be
a sale, after such removal, the Trustee will possess a first priority perfected
security interest in such instruments.
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Repurchase and Substitution of Mortgage Loans. (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;
(ii) The Depositor has taken all necessary 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;
(iii) This Agreement has been duly and validly executed and
delivered by the Depositor and 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 in accordance with
the terms of this Agreement, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, liquidation, receivership,
moratorium or other laws relating to or affecting creditors' rights
generally, or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provision of its certificate of incorporation or bylaws,
or any law or regulation to which the Depositor is subject, or conflict
with, result in a breach of or constitute a default under (or an event
which with notice or lapse of time or both would constitute a default
under) any of the terms, conditions or provisions of any agreement or
instrument to which the Depositor is a party or by which it is bound, or
any law, 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;
(v) The certificate of incorporation of the Depositor provides that
the Depositor is permitted to engage in only the following activities:
(A) to acquire, own, hold, sell, transfer, assign, pledge and
otherwise deal with the following: (I) "fully-modified pass-through"
certificates ("GNMA Certificates") issued and guaranteed as to
timely payment of principal and interest by the Government National
Mortgage Association ("GNMA"), a wholly-owned corporate
instrumentality of the United States within the Department of
Housing and Urban Development organized and existing under Title III
of the National Housing Act of 1934; (II) Guaranteed Mortgage
Pass-Through Certificates ("FNMA Certificates") issued and
guaranteed as to timely payment of principal and interest by FNMA;
(III) Mortgage Participation Certificates ("FHLMC Certificates")
issued and guaranteed as to timely payment of interest and ultimate
or full payment of principal by FHLMC; (IV) any other participation
certificates, pass-through certificates or other obligations or
interests backed directly or indirectly by mortgage loans and issued
or guaranteed by GNMA, FNMA or FHLMC (collectively with the GNMA
Certificates, FNMA Certificates and FHLMC Certificates, the "Agency
Securities"); (V) mortgage-backed securities, which securities need
not be issued or guaranteed, in whole or in part, by any
governmental entity, issued by one or more private entities
(hereinafter referred to as "Private Securities"); (VI) mortgage
loans secured by first, second or more junior liens on one-to-four
family residential properties, multifamily properties that are
either rental apartment buildings or projects containing five or
more residential units or commercial properties, regardless of
whether insured or guaranteed in whole or in part by any
governmental entity, or participation interests or stripped
interests in such mortgage loans ("Mortgage Loans"); (VII)
conditional sales contracts and installment sales or loan agreements
or participation interests therein secured by manufactured housing
("Contract"); and (VIII) receivables of third-parties or other
financial assets of third-parties, either fixed or revolving, that
by their terms convert into cash within a finite time period ("Other
Assets");
(B) to loan its funds to any person under loan agreements and
other arrangements which are secured by Agency Securities, Private
Securities, Mortgage Loans, Contracts and/or Other Assets;
(C) to authorize, issue, sell and deliver bonds or other
evidences of indebtedness that are secured by Agency Securities,
Private Securities, Mortgage Loans, Contracts and/or Other Assets;
(D) to authorize, issue, sell and deliver certificates
evidencing beneficial ownership interests in pools of Agency
Securities, Private Securities, Mortgage Loans, Contracts and/or
Other Assets; and
(E) to engage in any activity and to exercise any powers
permitted to corporations under the laws of the State of Delaware
that are incident to the foregoing and necessary or convenient to
accomplish the foregoing.
Capitalized terms defined in this clause (v) shall apply only to such clause;
(vi) There is no action, suit, proceeding or investigation pending
or threatened against the Depositor in any court or by or before any other
governmental agency or instrumentality which would materially and
adversely affect the ability of the Depositor to carry out its obligations
under this Agreement;
(vii) No consent, approval, authorization or order of, or
registration or filing with, or notice to any court or governmental agency
or body, is required for the execution, delivery and performance by the
Depositor of or compliance by the Depositor with this Agreement, or if
required, such approval has been obtained prior to the Cut-off Date; and
(viii) The Trustee, if not the owner of the related Mortgage Loan,
will have a valid and perfected security interest of first priority in
each of the Mortgage Loans and any proceeds thereof.
(b) The Depositor hereby represents and warrants with respect to
each Mortgage Loan that:
(i) Immediately prior to the transfer and assignment to the Trustee,
the Note and the Mortgage were not subject to an assignment or pledge, and
the Depositor had good title to, and was the sole owner of, the Mortgage
Loan and had full right to transfer and sell the Mortgage Loan to the
Trustee free and clear of any encumbrance, equity, lien, pledge, charge,
claim or security interest;
(ii) The Depositor is transferring such Mortgage Loan free and clear
of any and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iii) The related Assignment of Mortgage constitutes the legal,
valid and binding assignment of such Mortgage from the Depositor to the
Trustee, and any related Reassignment of Assignment of Leases, Rents and
Profits constitutes the legal, valid and binding assignment from the
Depositor to the Trustee; and
(iv) No claims have been made by the Depositor under the lender's
title insurance policy, and the Depositor has not done anything which
would impair the coverage of such lender's title insurance policy.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 2.03 shall survive delivery of the
respective Mortgage Files to the Custodian until the termination of this
Agreement, and shall inure to the benefit of the Certificateholders, the
Serviced Companion Loan Noteholders, the Master Servicer and the Special
Servicer.
(d) If any party hereto discovers that any document constituting a
part of a Mortgage File has not been delivered within the time periods provided
for in Section 2.01, has not been properly executed, is missing, does not appear
to be regular on its face or contains information that does not conform in any
material respect with the corresponding information set forth in the Mortgage
Loan Schedule (each, a "Defect"), or discovers or receives notice of a breach of
any representation or warranty of any Mortgage Loan Seller made pursuant to the
related Mortgage Loan Purchase Agreement with respect to any Mortgage Loan (a
"Breach"), such party shall give prompt written notice thereof to each of the
Rating Agencies, the related Mortgage Loan Seller, the other parties hereto and
the Controlling Class Representative. If any such Defect or Breach 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 Certificateholders in
any Mortgage Loan hereunder, then such Defect shall constitute a "Material
Defect" or such Breach shall constitute a "Material Breach," as the case may be;
provided, however, that if any of the documents specified in Section 2.01(i),
(ii), (vii), (xi), and (xix) of the definition of "Mortgage File" are not
delivered as required in Section 2.01(a), it shall be deemed a Material Defect.
Promptly upon receiving written notice of any such Material Defect or Material
Breach with respect to a Mortgage Loan (including through a written notice given
by any party hereto, as provided above), the applicable Mortgage Loan Seller
shall, not later than 90 days from the applicable Mortgage Loan Seller's receipt
of notice from the Depositor, the Master Servicer, the Special Servicer, the
Trustee or the Custodian of such Material Defect or Material Breach, as the case
may be (or, in the case of a Material Defect or Material Breach relating to a
Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC
Provisions, not later than 90 days after the Mortgage Loan Seller or any party
hereto discovering such Material Defect or Material Breach) (any such 90-day
period, the "Initial Resolution Period"), as and to the extent required under
the related Mortgage Loan Purchase Agreement, (i) cure the same in all material
respects, (ii) repurchase the affected Mortgage Loan at the applicable
Repurchase Price or in conformity with the applicable Mortgage Loan Purchase
Agreement or (iii) substitute a Qualifying Substitute Mortgage Loan for such
affected Mortgage Loan (provided that, in no event shall such substitution occur
later than the second anniversary of the Closing Date) and pay to the Master
Servicer for deposit into its Collection Account (or, with respect to any
Serviced Whole Loan, the applicable Serviced Whole Loan Collection Account) any
Substitution Shortfall Amount in connection therewith; provided, however, that
with respect to any Material Defect arising from a missing document as to which
the Trustee inadvertently certified its possession of such document on the
Closing Date, in the form of Exhibit S, the related Mortgage Loan Seller shall
have (A) 15 days to cure the Material Defect relating to the missing document in
the certification of clause (x) and (B) 30 days to cure the Material Defect
relating to the missing document in the certification of clause (y); provided,
further, that if (i) such Material Defect (other than the one relating to the
immediately preceding proviso) or Material Breach is capable of being cured but
not within the Initial Resolution Period, (ii) such Material Defect or Material
Breach is not related to any Mortgage Loan's not being a "qualified mortgage"
within the meaning of the REMIC Provisions and (iii) the Mortgage Loan Seller
has commenced and is diligently proceeding with the cure of such Material Defect
or Material Breach within the Initial Resolution Period, then the Mortgage Loan
Seller shall have an additional period equal to the applicable Resolution
Extension Period to complete such cure or, failing such cure, to repurchase the
Mortgage Loan or substitute a Qualifying Substitute Mortgage Loan. The
applicable Mortgage Loan Seller shall have an additional 90 days (without
duplication of the additional 90-day period set forth in the last sentence of
the definition of Resolution Extension Period) to cure such Material Defect or
Material Beach; provided that, the Mortgage Loan Seller has commenced and is
diligently proceeding with the cure of such Material Defect or Material Breach
and such failure to cure is solely the result of a delay in the return of
documents from the local filing or recording authorities. Notwithstanding the
foregoing, if a Mortgage Loan is not secured by a hotel, restaurant (operated by
a Borrower), healthcare facility, nursing home, assisted living facility,
self-storage facility, theatre, mobile home park or fitness center (operated by
a Borrower) property, then the failure to deliver to the Trustee copies of the
UCC financing statements with respect to such Mortgage Loan shall not be a
Material Defect.
If one or more (but not all) of the Mortgage Loans constituting a
cross-collateralized group of Mortgage Loans are to be repurchased or
substituted by the applicable Mortgage Loan Seller as contemplated by this
Section 2.03(d), then, prior to the subject repurchase or substitution, the
applicable Mortgage Loan Seller or its designee shall use its reasonable
efforts, subject to the terms of the related Mortgage Loan(s), to prepare and,
to the extent necessary and appropriate, have executed by the related Borrower
and record, such documentation as may be necessary to terminate the
cross-collateralization between the Mortgage Loan(s) in such
cross-collateralized group of Mortgage Loans that are to be repurchased or
substituted, on the one hand, and the remaining Mortgage Loan(s) therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that, no such termination shall be effected
unless and until the Controlling Class Representative, if one is then acting,
has consented in its sole discretion and the Trustee has received from the
applicable Mortgage Loan Seller (i) an Opinion of Counsel to the effect that
such termination would not cause an Adverse REMIC Event or an Adverse Grantor
Trust Event and (ii) written confirmation from each Rating Agency that the then
current rating assigned to any of the Certificates that are currently being
rated by such Rating Agency will not be qualified, downgraded or withdrawn by
reason of such termination; provided, further, that the Mortgage Loan Seller, in
the case of the related Mortgage Loans, may, at its option and within the 90-day
cure period (and any applicable extension thereof) described above, purchase or
substitute for the entire subject cross-collateralized group of Mortgage Loans
in lieu of effecting a termination of the cross-collateralization. All costs and
expenses incurred by the Trustee or any Person acting on its behalf pursuant to
this paragraph shall be included in the calculation of the Repurchase Price for
the Mortgage Loan(s) to be repurchased or substituted. If the
cross-collateralization of any cross-collateralized group of Mortgage Loans
cannot be terminated as contemplated by this paragraph, then the Seller shall
repurchase or substitute the entire subject cross-collateralized group of
Mortgage Loans.
Notwithstanding the foregoing, if there is a Material Breach or
Material Defect with respect to one or more Mortgaged Properties with respect to
a Mortgage Loan or cross-collateralized group of Mortgage Loans, the applicable
Mortgage Loan Seller will not be obligated to repurchase the Mortgage Loan or
cross-collateralized group of Mortgage Loans if the affected Mortgaged Property
may be released pursuant to the terms of any partial release provisions in the
related Loan Documents (and such Mortgaged Property is, in fact, released) and
the remaining Mortgaged Property(ies) satisfy the requirements, if any, set
forth in the Loan Documents and the Mortgage Loan Seller provides an Opinion of
Counsel to the effect that such release would not cause an Adverse REMIC Event
or an Adverse Grantor Trust Event to occur.
In the event that a Mortgage Loan Seller, in connection with a
Material Defect or a Material Breach (or an allegation of a Material Defect or a
Material Breach) pertaining to a Mortgage Loan, makes a cash payment pursuant to
an agreement or a settlement between the applicable Mortgage Loan Seller and the
Special Servicer, on behalf of the Trust (each such payment, a "Loss of Value
Payment") with respect to such Mortgage Loan, the amount of such Loss of Value
Payment shall be deposited into the Loss of Value Reserve Fund to be applied in
accordance with Section 3.06(f). If such Loss of Value Payment is made, the Loss
of Value Payment shall serve as the sole remedy available to the
Certificateholders and the Trustee on their behalf regarding any such Material
Breach or Material Defect in lieu of any obligation of the Mortgage Loan Seller
to otherwise cure such Material Breach or Material Defect or repurchase or
substitute for the affected Mortgage Loan based on such Material Breach or
Material Defect under any circumstances. This paragraph is intended to apply
only to a mutual agreement or settlement between the applicable Mortgage Loan
Seller and the Trust, provided, however, that prior to any such agreement or
settlement nothing in this paragraph shall preclude the Mortgage Loan Seller or
the Trustee from exercising any of its rights related to a Material Defect or a
Material Breach in the manner and timing set forth in the related Mortgage Loan
Purchase Agreement or this Section 2.03 (excluding this paragraph) (including
any right to cure, repurchase or substitute for such Mortgage Loan), and
provided, further, that such Loss of Value Payment shall not be greater than the
Repurchase Price of the affected Mortgage Loan.
(e) In connection with any repurchase of or substitution for a
Mortgage Loan contemplated by this Section 2.03, (A) the Trustee, the Master
Servicer (with respect to any such Mortgage Loan other than a Specially Serviced
Loan) and the Special Servicer (with respect to any such Mortgage Loan that is a
Specially Serviced Loan) shall each tender to the applicable Mortgage Loan
Seller, upon delivery (i) to each of the Master Servicer or the Special
Servicer, as applicable, of a trust receipt and (ii) to the Trustee by the
Master Servicer or the Special Servicer, as applicable, of a Request for Release
and an acknowledgement by the Master Servicer or Special Servicer, as
applicable, of its receipt of the Repurchase Price or the Substitution Shortfall
Amount from the applicable Mortgage Loan Seller, (1) all portions of the
Mortgage File and other documents pertaining to such Mortgage Loan possessed by
it, and (2) each document that constitutes a part of the Mortgage File that was
endorsed or assigned to the Trustee shall be endorsed or assigned without
recourse in the form of endorsement or assignment provided to the Trustee by the
applicable Mortgage Loan Seller, as the case may be, to the applicable Mortgage
Loan Seller as shall be necessary to vest in the applicable Mortgage Loan Seller
the legal and beneficial ownership of such Mortgage Loan to the extent such
ownership was transferred to the Trustee (provided, however, that the Master
Servicer or Special Servicer, as applicable, shall use reasonable efforts to
cooperate in furnishing necessary information to the extent in its possession to
the Mortgage Loan Seller in connection with such Mortgage Loan Seller's
preparation of such endorsement or assignment) and (B) the Trustee shall
release, or cause a release of, any escrow payments and reserve funds held by
the Trustee, or on the Trustee's behalf, in respect of such Mortgage Loan to the
applicable Mortgage Loan Seller.
(f) The Special Servicer shall, for the benefit of the
Certificateholders and the Trustee, enforce the obligations of the applicable
Mortgage Loan Seller under Section 6 of the applicable Mortgage Loan Purchase
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, shall be carried out in accordance with the Servicing
Standard. The Trustee, the Master Servicer and the Special Servicer, as the case
may be, shall be reimbursed for the reasonable costs of such enforcement: first,
pursuant to Section 3.06 (with respect to the related Mortgage Loan), out of the
related Repurchase Price or Substitution Shortfall Amount, as applicable, to the
extent that such expenses are a specific component thereof; and second, if at
the conclusion of such enforcement action it is determined that the amounts
described in clause first are insufficient, then pursuant to Section 3.06, out
of general collections on the Mortgage Loans on deposit in the Collection
Account in each case with interest thereon at the Advance Rate from the time
such expense was incurred to, but excluding, the date such expense was
reimbursed.
So long as document exceptions are outstanding, on each anniversary
of the Closing Date, the Custodian shall prepare and forward to the Depositor,
the Trustee, the Master Servicer, the Special Servicer, the Controlling Class
Representative (as identified to the Custodian by the Trustee) and the
applicable Mortgage Loan Seller, a document exception report setting forth the
then current status of any Defects related to the Mortgage Files pertaining to
the Mortgage Loans sold by such Mortgage Loan Seller in a format mutually agreed
upon between the Custodian and the Trustee.
As to any Qualifying Substitute Mortgage Loan, the Trustee shall
direct the related Mortgage Loan Seller to deliver to the Custodian for such
Qualifying Substitute Mortgage Loan (with a copy to the Master Servicer), the
related Mortgage File with the related Note endorsed as required by Section
2.01(a)(i) hereof. Monthly Payments due with respect to Qualifying Substitute
Mortgage Loans in or prior to the month of substitution shall not be part of the
Trust Fund and will be retained by the Master Servicer and remitted by the
Master Servicer to the related Mortgage Loan Seller on the next succeeding
Distribution Date. For the month of repurchase or substitution, distributions to
Certificateholders will include the Monthly Payment(s) due on the related
Removed Mortgage Loan and received by the Master Servicer or the Special
Servicer on behalf of the Trust on or prior to the related date of repurchase or
substitution, as applicable, and such Mortgage Loan Seller shall be entitled to
retain all amounts received thereafter in respect of such Removed Mortgage Loan.
In any month in which a Mortgage Loan Seller substitutes one or more
Qualifying Substitute Mortgage Loans for one or more Removed Mortgage Loans, the
Master Servicer will determine the applicable Substitution Shortfall Amount. The
Trustee shall direct such Mortgage Loan Seller to deposit cash equal to such
amount into the Collection Account and/or the applicable Serviced Whole Loan
Collection Account, as applicable, concurrently with the delivery of the
Mortgage Files for such Qualifying Substitute Mortgage Loans, without any
reimbursement thereof. The Trustee shall also direct such Mortgage Loan Seller
to give written notice to the Depositor and the Master Servicer of such deposit.
The Trustee shall amend the Mortgage Loan Schedule to reflect the removal of
each Removed Mortgage Loan and, if applicable, the substitution of the
Qualifying Substitute Mortgage Loan; and, upon such amendment, the Trustee shall
deliver or cause the delivery of such amended Mortgage Loan Schedule to the
other parties hereto. Upon any such substitution, the Qualifying Substitute
Mortgage Loans shall be subject to the terms of this Agreement in all respects.
It is understood and agreed that Section 6 of the Mortgage Loan
Purchase Agreements provides the sole remedy available to the Certificateholders
and the Trustee on behalf of the Certificateholders respecting any Breach
(including a Breach with respect to a Mortgage Loan failing to constitute a
Qualified Mortgage) or any Defect.
(g) In the event that any litigation is commenced which alleges
facts which, in the judgment of the Depositor, could constitute a breach of any
of the Depositor's representations and warranties relating to the Mortgage
Loans, the Depositor hereby reserves the right to conduct the defense of such
litigation at its expense and shall not be required to obtain any consent from
the Master Servicer, the Special Servicer or the Controlling Class
Representative.
(h) If for any reason a Mortgage Loan Seller fails to fulfill its
obligations under the related Mortgage Loan Purchase Agreement with respect to
any Mortgage Loan, the Special Servicer shall use reasonable efforts in
enforcing any obligation of such Mortgage Loan Seller to cure, repurchase or
substitute for such Mortgage Loan under the terms of the related Mortgage Loan
Purchase Agreement all at the expense of such Mortgage Loan Seller.
Section 2.04 Representations, Warranties and Covenants of the
General Master Servicer, Master Servicer No. 2, Special Servicer and Trustee.
(a) The General Master Servicer, as General Master Servicer with respect to the
Mortgage Loans (other than the Ala Moana Portfolio Mortgage Loan and the Fair
Lakes Office Portfolio Mortgage Loan) and, if applicable, Serviced Whole Loans,
that it is servicing hereunder, hereby represents and warrants with respect to
itself to the Trustee, for its own benefit and the benefit of the
Certificateholders, and to Master Servicer No. 2, the Depositor, the Special
Servicer and the Serviced Companion Loan Noteholders, as of the Closing Date,
that:
(i) The General Master Servicer is a corporation, duly organized,
validly existing and in good standing under the laws of the State of
California, and the General Master Servicer is in compliance with the laws
of each state (within the United States of America) in which any related
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 General
Master Servicer, and the performance and compliance with the terms of this
Agreement by the General Master Servicer, do not (A) violate the General
Master Servicer's certificate 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 General 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 General Master Servicer to perform its obligations under this
Agreement or its financial condition;
(iii) The General Master Servicer has the full corporate 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 by it of this Agreement, and has duly executed
and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by Master Servicer No. 2, the Trustee, the Paying Agent, the
Special Servicer and the Depositor, constitutes a valid, legal and binding
obligation of the General Master Servicer, enforceable against the General
Master Servicer in accordance with the terms hereof, subject to applicable
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights generally, and general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) The General 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, municipal or governmental agency, which
default, in the General Master Servicer's reasonable judgment is likely to
materially and adversely affect the financial condition or operations of
the General 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 the General Master
Servicer's knowledge, threatened against the General Master Servicer which
would prohibit the General Master Servicer from entering into this
Agreement or, in the General Master Servicer's good faith and reasonable
judgment is likely to materially and adversely affect either the ability
of the General Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer;
(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 General Master Servicer, or compliance by the General
Master Servicer with, this Agreement or the consummation of the
transactions of the Master Servicer contemplated by this Agreement, except
for any consent, approval, authorization or order which has been obtained,
or which, if not obtained would not have a materially adverse effect on
the ability of the General Master Servicer to perform its obligations
hereunder;
(viii) Each officer and employee of the General Master Servicer that
has responsibilities concerning the servicing and administration of
Mortgage Loans or Serviced Whole Loans is covered by errors and omissions
insurance and the fidelity bond in the amounts and with the coverage
required by this Agreement.
(b) Master Servicer No. 2, as Master Servicer No. 2 with respect to
the Ala Moana Portfolio Mortgage Loan and the Fair Lakes Office Portfolio
Mortgage Loan that it is servicing hereunder, hereby represents and warrants
with respect to itself to the Trustee, for its own benefit and the benefit of
the Certificateholders, and to the Depositor, the General Master Servicer, the
Special Servicer and the Serviced Companion Loan Noteholders, as of the Closing
Date, that:
(i) Master Servicer No. 2 is a national banking association, duly
organized, validly existing and in good standing under the laws of the
United States of America, and Master Servicer No. 2 is in compliance with
the laws of each state (within the United States of America) in which any
related Mortgaged Property is located to the extent necessary to perform
its obligations under this Agreement;
(ii) The execution and delivery of this Agreement by Master Servicer
No. 2, and the performance and compliance with the terms of this Agreement
by Master Servicer No. 2, do not (A) violate Master Servicer No. 2's
articles of association 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 Master Servicer No. 2 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 Master Servicer No. 2 to
perform its obligations under this Agreement or its financial condition;
(iii) Master Servicer No. 2 has the full corporate 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 by it of this Agreement, and has duly executed
and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the General Master Servicer, the Trustee, the Paying Agent,
the Special Servicer and the Depositor, constitutes a valid, legal and
binding obligation of Master Servicer No. 2, enforceable against Master
Servicer No. 2 in accordance with the terms hereof, subject to applicable
bankruptcy, insolvency, reorganization, receivership, moratorium and other
laws affecting the enforcement of creditors' rights generally, and general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law;
(v) Master Servicer No. 2 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, municipal or governmental agency, which default, in
Master Servicer No. 2's reasonable judgment is likely to materially and
adversely affect the financial condition or operations of Master Servicer
No. 2 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 Master Servicer No.
2's knowledge, threatened against Master Servicer No. 2 which would
prohibit Master Servicer No. 2 from entering into this Agreement or, in
Master Servicer No. 2's good faith and reasonable judgment is likely to
materially and adversely affect either the ability of Master Servicer No.
2 to perform its obligations under this Agreement or the financial
condition of Master Servicer No. 2;
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Master Servicer No. 2, or compliance by Master Servicer No.
2 with, this Agreement or the consummation of the transactions of the
Master Servicer contemplated by this Agreement, except for any consent,
approval, authorization or order which has been obtained, or which, if not
obtained would not have a materially adverse effect on the ability of
Master Servicer No. 2 to perform its obligations hereunder;
(viii) Each officer and employee of Master Servicer No. 2 that has
responsibilities concerning the servicing and administration of Mortgage
Loans or Serviced Whole Loans is covered by errors and omissions insurance
and the fidelity bond in the amounts and with the coverage required by
this Agreement.
(c) The Special Servicer, as Special Servicer, hereby represents and
warrants to and covenants with the Trustee, for its own benefit the benefit of
the Certificateholders, and to the Depositor, the Master Servicer and the
Serviced Companion Loan Noteholders, 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 Virginia, and
the Special Servicer is in compliance with the laws of each state (within
the United States of America) in which any related 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, do not (A) violate the Special
Servicer's certificate 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 corporate 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 by it of this Agreement, and has duly executed
and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Paying Agent, the Master Servicer and the
Depositor, constitutes a valid, legal and binding obligation of the
Special Servicer, enforceable against the Special Servicer in accordance
with the terms hereof, subject to applicable bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws affecting the
enforcement of creditors' rights generally, and 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, municipal 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 is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer;
(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 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 which, if not
obtained would not have a materially adverse effect on the ability of the
Special Servicer to perform its obligations hereunder;
(viii) Each officer and employee of the Special Servicer that has
responsibilities concerning the servicing and administration of Mortgage
Loans or Serviced Whole Loans is covered by errors and omissions insurance
and the fidelity bond in the amounts and with the coverage required by
this Agreement.
(d) It is understood and agreed that the representations and
warranties set forth in this Section shall survive delivery of the respective
Mortgage Files to the Trustee or the Custodian on behalf of the Trustee until
the termination of this Agreement, and shall inure to the benefit of the
Trustee, the Depositor, the Serviced Companion Loan Noteholders and the Master
Servicer or Special Servicer, as the case may be. Upon discovery by the
Depositor, either Master Servicer, the Special Servicer or a Responsible Officer
of the Trustee (or upon written notice thereof from any Certificateholder) of a
breach of any of the representations and warranties set forth in this Section
which materially and adversely affects the interests of the Certificateholders,
the Master Servicer, Special Servicer or the Trustee in any Mortgage Loan, the
party discovering such breach shall give prompt written notice to the other
parties hereto and the Mortgage Loan Sellers.
(e) The Trustee hereby represents and warrants to the Depositor, the
Master Servicer, the Special Servicer and the Serviced Companion Loan
Noteholders as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized,
validly existing, and in good standing under the laws of the United States
and has full power, authority and legal right to own its properties and
conduct its business as presently conducted and to execute, deliver and
perform the terms of this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by the Trustee and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a legal, valid and binding
instrument enforceable against the Trustee in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors' rights in general and by general equity principles (regardless
of whether such enforcement is considered in a proceeding in equity or at
law).
(iii) Neither the execution and delivery of this Agreement by the
Trustee nor the consummation by the Trustee of the transactions herein
contemplated to be performed by the Trustee, nor compliance by the Trustee
with the provisions hereof, will conflict with or result in a breach of,
or constitute a default under, any of the provisions of any applicable law
(subject to the appointment in accordance with such applicable law of any
co-Trustee or separate Trustee required pursuant to this Agreement),
governmental rule, regulation, judgment, decree or order binding on the
Trustee or its properties or the organizational documents of the Trustee
or the terms of any material agreement, instrument or indenture to which
the Trustee is a party or by which it is bound.
(iv) The Trustee is not in violation of, and the execution and
delivery of this Agreement by the Trustee and its performance and
compliance with the terms of this Agreement will not constitute a
violation with respect to, any order or decree of any court binding on the
Trustee or any law, order or regulation of any federal, state, municipal
or governmental agency having jurisdiction, or result in the creation or
imposition of any lien, charge or encumbrance which, in any such event,
would have consequences that would materially and adversely affect the
condition (financial or otherwise) or operation of the Trustee or its
properties or impair the ability of the Trust Fund to realize on the
Mortgage Loans;
(v) No consent, approval, authorization or order of, or registration
or filing with, or notice to any court or governmental agency or body, is
required for the execution, delivery and performance by the Trustee of or
compliance by the Trustee with this Agreement, or if required, such
approval has been obtained prior to the Cut-off Date.
Section 2.05 Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests. The Trustee acknowledges the assignment to it of
the Mortgage Loans and the delivery of the Mortgage Files to the Custodian (to
the extent the documents constituting the Mortgage Files are actually delivered
to the Custodian), subject to the provisions of Section 2.01 and Section 2.02
and, concurrently with such delivery, (i) acknowledges and hereby declares that
it holds the Mortgage Loans (excluding Excess Interest) on behalf of the
Lower-Tier REMIC and the Holders of the Certificates (other than the Class T
Certificates); (ii) acknowledges the issuance of the Lower-Tier Regular
Interests and the residual interest in the Lower-Tier REMIC represented by the
Class LR Certificates (as provided in clause (iii)) and hereby declares that it
holds the Lower-Tier Regular Interests on behalf of the Upper-Tier REMIC and the
Holders of the Certificates (other than the Class T and Class LR Certificates);
and (iii) in exchange for the Lower-Tier Regular Interests, has caused to be
executed and caused to be authenticated and delivered to or upon the order of
the Depositor, or as directed by the terms of this Agreement, the Regular
Certificates, Class R and Class LR Certificates (in respect of the residual
interest in the Lower-Tier REMIC) in authorized denominations, in each case
registered in the names set forth in such order or as so directed in this
Agreement and duly authenticated by the Authenticating Agent, which Certificates
and Class T Certificates issued below evidence ownership of the entire Trust
Fund.
The Trustee hereby acknowledges the assignment to it of the Excess
Interest and, concurrently with such assignment, acknowledges the issuance of
the Class T Certificates, which are hereby designated as undivided beneficial
interests in the portion of the Trust Fund consisting of Excess Interest and the
Grantor Trust Distribution Account, which portion shall be treated as a grantor
trust.
Section 2.06 Miscellaneous REMIC and Grantor Trust Provisions. (a)
The Lower-Tier Regular Interests issued hereunder are hereby designated as the
"regular interests" in the Lower-Tier REMIC within the meaning of Section
860G(a)(1) of the Code, and the Class LR Certificates are hereby designated as
representing the sole class of "residual interests" in the Lower-Tier REMIC
within the meaning of Section 860G(a)(2) of the Code. The Regular Certificates
are hereby designated as "regular interests" in the Upper-Tier REMIC within the
meaning of Section 860G(a)(1) of the Code and the Class R Certificates are
hereby designated as the sole Class of "residual interests" in the Upper-Tier
REMIC within the meaning of Section 860G(a)(2) of the Code. The Closing Date is
hereby designated as the "Startup Day" of the Lower-Tier REMIC and the
Upper-Tier REMIC within the meaning of Section 860G(a)(9) of the Code. The
"latest possible maturity date" of the Lower-Tier Regular Interests and the
Regular Certificates for purposes of Section 860G(a)(l) of the Code is the Rated
Final Distribution Date.
(b) None of the Depositor, the Trustee, the Master Servicer or the
Special Servicer shall enter into any arrangement by which the Trust Fund will
receive a fee or other compensation for services other than as specifically
contemplated herein.
(c) The assets of the Grantor Trust consisting of the right to any
Excess Interest shall be held by the Trustee for the benefit of the Holders of
the Class T Certificates, which Class T Certificates will evidence 100%
beneficial ownership of such assets from and after the Closing Date.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
Section 3.01 The Master Servicer to Act as Master Servicer; Special
Servicer to Act as Special Servicer; Administration of the Mortgage Loans and
the Serviced Companion Loans. (a) The Master Servicer and the Special Servicer,
each as an independent contractor servicer, shall service and administer the
Mortgage Loans (other than the ShopKo Portfolio Mortgage Loan) on behalf of the
Trust Fund and the Trustee (as Trustee for the Certificateholders), and, in the
case of the Serviced Companion Loans, on behalf of the Serviced Companion Loan
Noteholders, in each case, in accordance with the Servicing Standard and, with
respect to any Serviced Companion Loan, as a collective whole with the related
Mortgage Loan, giving due regard to the junior nature of the related Serviced B
Loan, if any.
References to "Mortgage Loans" and "Mortgaged Property" contained in
this Article III, unless otherwise specified to include the ShopKo Portfolio
Whole Loan, and the obligations of the Master Servicer or the Special Servicer
pursuant to this Agreement, shall be construed to exclude the ShopKo Portfolio
Whole Loan and the related Mortgaged Property.
The Master Servicer's or Special Servicer's liability for actions
and omissions in its capacity as Master Servicer or Special Servicer, as the
case may be, hereunder is limited as provided herein (including, without
limitation, pursuant to Section 6.03 hereof). To the extent consistent with the
foregoing and subject to any express limitations set forth in this Agreement,
the Master Servicer and Special Servicer shall seek to maximize the timely and
complete recovery of principal and interest on the Notes; provided, however,
that nothing herein contained shall be construed as an express or implied
guarantee by the Master Servicer or Special Servicer of the collectibility of
the Mortgage Loans and the Serviced Companion Loans. Subject only to the
Servicing Standard, the Master Servicer and Special Servicer shall have full
power and authority, acting alone or through sub-servicers (subject to paragraph
(c) of this Section 3.01, to the related sub-servicing agreement with each
sub-servicer and to Section 3.02), to do or cause to be done any and all things
in connection with such servicing and administration that it may deem consistent
with the Servicing Standard and, in its reasonable judgment, in the best
interests of the Certificateholders, including, without limitation, with respect
to each Mortgage Loan (in the case of the Serviced Companion Loans, in the best
interests of the Certificateholders and the Serviced Companion Loan Noteholders,
as a collective whole) to prepare, execute and deliver, on behalf of the
Certificateholders and Serviced Companion Loan Noteholders and the Trustee or
any of them: (i) any and all financing statements, continuation statements and
other documents or instruments necessary to maintain the lien on each Mortgaged
Property and related collateral; (ii) any modifications, waivers, consents or
amendments to or with respect to any documents contained in the related Mortgage
File; and (iii) any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments, with
respect to the Mortgage Loans and the Mortgaged Properties. Notwithstanding the
foregoing, neither the Master Servicer nor the Special Servicer shall modify,
amend, waive or otherwise consent to any change of the terms of any Mortgage
Loan except under the circumstances described in Sections 3.03, 3.09, 3.10,
3.28, 3.30, 3.31, 3.32 and 3.34 hereof. The Master Servicer and Special Servicer
shall provide to the Borrowers related to the Mortgage Loans that it is
servicing any reports required to be provided to them thereby pursuant to the
related Loan Documents. Subject to Section 3.11, the Trustee shall, upon the
receipt of a written request of a Servicing Officer, execute and deliver to the
Master Servicer and Special Servicer any powers of attorney and other documents
prepared by the Master Servicer and Special Servicer and necessary or
appropriate (as certified in such written request) to enable the Master Servicer
and Special Servicer to carry out their servicing and administrative duties
hereunder. The Trustee shall not be held liable for any misuse of any such power
of attorney by the Master Servicer and Special Servicer. Notwithstanding
anything contained herein to the contrary, neither the Master Servicer nor the
Special Servicer shall, without the Trustee's written consent: (i) initiate any
action, suit or proceeding solely under the Trustee's name without indicating
the Master Servicer's or Special Servicer's, as applicable, representative
capacity; or (ii) take any action with the intent to cause, and that actually
causes, the Trustee to be registered to do business in any state.
(b) Unless otherwise provided in the related Note or related
Co-Lender Agreement, the Master Servicer shall apply any partial Principal
Prepayment received on a Mortgage Loan or Serviced Companion Loan, as
applicable, on a date other than a Due Date to the unpaid principal balance of
such Mortgage Loan or Serviced Companion Loan, as applicable, as of the Due Date
immediately following the date of receipt of such partial Principal Prepayment.
(c) The Master Servicer and, with the consent of the Controlling
Class Representative, the Special Servicer, may enter into Sub-Servicing
Agreements with third parties with respect to any of its respective obligations
hereunder, provided, that (i) any such agreement requires the Sub-Servicer to
comply with all of the applicable terms and conditions of this Agreement and
shall be consistent with the provisions of this Agreement, the terms of the
respective Mortgage Loans and, Serviced Companion Loans and, in the case of a
Serviced Companion Loan, the related Co-Lender Agreement, (ii) if such
Sub-Servicer (other than a Subcontractor or vendor retained by Master Servicer
No. 2) is a Servicing Function Participant, any such agreement provides that (x)
the failure of such Sub-Servicer to comply with any of the requirements under
Article X of this Agreement applicable to such Sub-Servicer, including the
failure to deliver any reports or certificates at the time such report or
certification is required under Article X and (y) the failure of the related
Sub-Servicer to comply with any requirements to deliver any items required by
Items 1122 and 1123 of Regulation AB under any other pooling and servicing
agreement relating to any other series of certificates offered by the Depositor
shall constitute an event of default by such Sub-Servicer upon the occurrence of
which either the Master Servicer or the Depositor may immediately terminate the
related Sub-Servicer under the related Sub-Servicing Agreement and that such
termination shall be deemed for cause, (iii) no Sub-Servicer retained by a
Master Servicer or the Special Servicer, as applicable, shall grant any
modification, waiver or amendment to any Mortgage Loan, or Serviced Companion
Loan, as applicable, or foreclose any Mortgage without the approval of the
Master Servicer or the Special Servicer, as applicable, which approval shall be
given or withheld in accordance with the procedures set forth in Sections 3.09,
3.10, 3.28, 3.30, 3.31, 3.32 or 3.34 (as applicable), (iv) such agreement shall
be consistent with the Servicing Standard and (v) with respect to any
Sub-Servicing Agreement entered into after the Closing Date and prior to the
date upon which the Trust's Exchange Act reporting obligations are suspended by
the filing of a Form 15 as contemplated by Section 10.10, if such Sub-Servicer
is a Servicing Function Participant, such Sub-Servicer, at the time the related
Sub-Servicing Agreement is entered into, is not a Prohibited Party. Any such
Sub-Servicing Agreement may permit the Sub-Servicer to delegate its duties to
agents or subcontractors so long as the related agreements or arrangements with
such agents or subcontractors are consistent with the provisions of this Section
3.01(c) (including, for the avoidance of doubt, that no such agent or
subcontractor is a Prohibited Party at the time the related sub-servicing
agreement is entered into). Any monies received by a Sub-Servicer pursuant to a
Sub-Servicing agreement (other than sub-servicing fees) shall be deemed to be
received by the Master Servicer on the date received by such Sub-Servicer.
Any Sub-Servicing Agreement entered into by a Master Servicer or the
Special Servicer, as applicable, shall provide that it may be assumed by the
Trustee if the Trustee has assumed the duties of the Master Servicer or the
Special Servicer, respectively, or any successor Master Servicer or Special
Servicer, as applicable, without cost or obligation to the assuming party or the
Trust Fund, upon the assumption by such party of the obligations, except to the
extent they arose prior to the date of assumption, of the Master Servicer or the
Special Servicer, as applicable, pursuant to Section 7.02 (it being understood
that any such obligations shall be the obligations of the terminated Master
Servicer or Special Servicer, as applicable, only).
Any Sub-Servicing Agreement, and any other transactions or services
relating to the Mortgage Loans or the Serviced Companion Loans involving a
Sub-Servicer, shall be deemed to be between the Master Servicer or the Special
Servicer, as applicable, and such Sub-Servicer alone, and the Trustee, the Trust
Fund and Certificateholders and, if applicable, Serviced Companion Loan
Noteholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to the Sub-Servicer,
except as set forth in Section 3.01(c)(ii) and Section 3.01(d).
Notwithstanding the provisions of any Sub-Servicing Agreement and
this Section 3.01, in no event shall the Trust Fund or any Serviced Companion
Loan Noteholder bear any termination fee required to be paid to any Sub-Servicer
as a result of the termination of any Sub-Servicing Agreement.
(d) If the Trustee or any successor Master Servicer assumes the
obligations of either Master Servicer, or if the Trustee or any successor
Special Servicer assumes the obligations of the Special Servicer, in each case
in accordance with Section 7.02, the Trustee, the successor Master Servicer or
such successor Special Servicer, as applicable, to the extent necessary to
permit the Trustee, the successor Master Servicer or such successor Special
Servicer, as applicable, to carry out the provisions of Section 7.02, shall,
without act or deed on the part of the Trustee, the successor Master Servicer or
such successor Special Servicer, as applicable, succeed to all of the rights and
obligations of the Master Servicer or the Special Servicer, as applicable, under
any Sub-Servicing Agreement entered into by the Master Servicer or the Special
Servicer, as applicable, pursuant to Section 3.01(c). In such event, such
successor shall be deemed to have assumed all of the Master Servicer's or the
Special Servicer's interest, as applicable, therein (but not any liabilities or
obligations in respect of acts or omissions of the Master Servicer or the
Special Servicer, as applicable, prior to such deemed assumption) and to have
replaced the Master Servicer or the Special Servicer, as applicable, as a party
to such Sub-Servicing Agreement to the same extent as if such Sub-Servicing
Agreement had been assigned to such successor, except that the Master Servicer
or the Special Servicer, as applicable, shall not thereby be relieved of any
liability or obligations under such Sub-Servicing Agreement that accrued prior
to the succession of such successor.
If the Trustee or any successor Master Servicer or Special Servicer,
as applicable, assumes the servicing obligations of either Master Servicer or
the Special Servicer, as applicable, then upon request of such successor, the
Master Servicer or Special Servicer, as applicable, shall at its own expense
(except (i) in the event that the Special Servicer is terminated pursuant to
Section 3.25(b), at the expense of the Certificateholders effecting such
termination, as applicable; or (ii) in the event that the Master Servicer or the
Special Servicer is terminated pursuant to Section 6.04(c), at the expense of
the Trust) deliver to such successor all documents and records relating to any
Sub-Servicing Agreement and the Mortgage Loans and/or, if applicable, the
Serviced Companion Loans then being serviced thereunder and an accounting of
amounts collected and held by it, if any, and shall otherwise use commercially
reasonable efforts to effect the orderly and efficient transfer of any
Sub-Servicing Agreement to such successor. Neither Master Servicer shall be
required to assume the obligations of the Special Servicer and nothing in this
paragraph shall imply otherwise.
(e) The parties hereto acknowledge that each Whole Loan is subject
to the terms and conditions of the related Co-Lender Agreement. The parties
hereto further recognize the respective rights and obligations of related
Companion Loan Noteholders under the related Co-Lender Agreement.
Notwithstanding anything herein to the contrary, the parties hereto
acknowledge and agree that the Master Servicer's and Special Servicer's
obligations and responsibilities hereunder and the Master Servicer's and Special
Servicer's authority with respect to the Serviced Whole Loans are limited by and
subject to the terms of the related Co-Lender Agreement.
In the event that any Mortgage Loan included in any Serviced Whole
Loan is no longer part of the Trust Fund and the servicing and administration of
such Whole Loan is to be governed by a separate servicing agreement and not by
this Agreement, the Master Servicer and, if such Serviced Whole Loan is then
being specially serviced hereunder, the Special Servicer, shall continue to act
in such capacities under such separate servicing agreement, which agreement
shall be reasonably acceptable to the Master Servicer and/or the Special
Servicer, as the case may be, and shall contain servicing and administration,
limitation of liability, indemnification and servicing compensation provisions
substantially similar to the corresponding provisions of this Agreement, except
that such Serviced Whole Loan and the related Mortgaged Property shall be
serviced as if they were the sole assets serviced and administered thereunder
and the sole source of funds thereunder and except that there shall be no
further obligation of any Person to make P&I Advances. All amounts due the
Master Servicer (including Advances and interest thereon) pursuant to this
Agreement and the applicable Co-Lender Agreement shall be paid to the terminated
Master Servicer on the first Servicer Remittance Date following termination. In
addition, until such time as a separate servicing agreement with respect to such
Serviced Whole Loan and any related REO Property has been entered into then,
notwithstanding that neither such Mortgage Loan nor any related REO Property is
part of the Trust Fund, the Trustee shall continue to hold the Mortgage File and
the Master Servicer and, if applicable, the Special Servicer shall (subject to
the preceding sentence) continue to service such Serviced Whole Loan or any
related REO Property, as the case may be, under this Agreement as if it were a
separate servicing agreement. Nothing herein shall be deemed to override the
provisions of a Co-Lender Agreement with respect to the rights of the related
noteholders thereunder and with respect to the servicing and administrative
duties and obligations with respect to such Whole Loans. In the event of any
inconsistency or discrepancy between the provisions, terms or conditions of a
Co-Lender Agreement related to a Serviced Whole Loan and the provisions, terms
or conditions of this Agreement, the related Co-Lender Agreement shall govern,
and as to any matter on which such Co-Lender Agreement is silent or makes
reference to this Agreement, this Agreement shall govern.
Section 3.02 Liability of the Master Servicer. Notwithstanding any
Sub-Servicing Agreement, any of the provisions of this Agreement relating to
agreements or arrangements between the Master Servicer or Special Servicer and
any Person acting as sub-servicer (or its agents or subcontractors) or any
reference to actions taken through any Person acting as sub-servicer or
otherwise, the Master Servicer or Special Servicer, as applicable, shall remain
obligated and primarily liable to the Trustee (on behalf of the
Certificateholders), the Certificateholders and, with respect to the Serviced
Whole Loans, the Serviced Companion Loan Noteholders, for the servicing and
administering of the Mortgage Loans and Serviced Companion Loans in accordance
with the provisions of this Agreement without diminution of such obligation or
liability by virtue of such sub-servicing agreements or arrangements or by
virtue of indemnification from the Depositor or any other Person acting as
sub-servicer (or its agents or subcontractors) to the same extent and under the
same terms and conditions as if the Master Servicer or Special Servicer, as
applicable, alone were servicing and administering the Mortgage Loans and the
Serviced Companion Loans. Each of the Master Servicer and the Special Servicer
shall be entitled to enter into an agreement with any sub-servicer providing for
indemnification of the Master Servicer or Special Servicer, as applicable, by
such sub-servicer, and nothing contained in this Agreement shall be deemed to
limit or modify such indemnification, but no such agreement for indemnification
shall be deemed to limit or modify this Agreement.
Section 3.03 Collection of Mortgage Loan and Serviced Companion Loan
Payments. (a) The Master Servicer (with respect to the Mortgage Loans and the
Serviced Companion Loans, other than Specially Serviced Loans, that the Master
Servicer is Servicing) and the Special Servicer (with respect to Specially
Serviced Loans) shall use reasonable efforts to collect all payments called for
under the terms and provisions of the Mortgage Loans and the Serviced Companion
Loans each is obligated to service hereunder, and shall follow the Servicing
Standard with respect to such collection procedures; provided, however, that
nothing herein contained shall be construed as an express or implied guarantee
by the Master Servicer or the Special Servicer of the collectibility of the
Mortgage Loans and the Serviced Companion Loans; provided, further, that with
respect to the Mortgage Loans or Serviced Whole Loans, as applicable, that have
Anticipated Repayment Dates, so long as the related Borrower is in compliance
with each provision of the related loan documents, the Master Servicer and
Special Servicer (including the Special Servicer in its capacity as a
Certificateholder, if applicable) shall not take any enforcement action with
respect to the failure of the related Borrower to make any payment of Excess
Interest, other than requests for collection, until the maturity date of such
Mortgage Loan or Serviced Whole Loan, as applicable, or the outstanding
principal balance of such Mortgage Loan or Serviced Whole Loan, as applicable,
has been paid in full, however, consistent with the Servicing Standard, the
Master Servicer, or the Special Servicer each may in its discretion waive the
Excess Interest (even at the maturity date) in connection with any Mortgage Loan
it is obligated to service hereunder if taking such action is in the best
interest of the Certificateholders and any related Serviced Companion Loan
Noteholders as a collective whole. With respect to each Performing Loan, the
Master Servicer shall use its reasonable efforts, consistent with the Servicing
Standard, to collect income statements and rent rolls from Borrowers as required
by the Loan Documents and the terms hereof. The Master Servicer shall provide at
least 90 days' notice (with a copy to the Special Servicer) to the Borrowers of
Balloon Payments coming due. Consistent with the foregoing, the Master Servicer
(with respect to each Performing Loan) or the Special Servicer (with respect to
Specially Serviced Loans) may in their discretion waive any late payment charge
in connection with any delinquent Monthly Payment or Balloon Payment with
respect to any Mortgage Loan or Serviced Companion Loan that it is servicing. In
addition, the Special Servicer shall be entitled to take such actions with
respect to the collection of payments on the Mortgage Loans and the Serviced
Companion Loans as are permitted or required under Section 3.28 hereof.
(b) The Master Servicer shall, within one Business Day following
receipt thereof, deposit into the applicable Serviced Whole Loan Collection
Account all amounts received with respect to each Serviced Whole Loan or any
related REO Property.
Section 3.04 Collection of Taxes, Assessments and Similar Items;
Escrow Accounts. (a) The Special Servicer, in the case of Specially Serviced
Loans and REO Loans and, if applicable, the related Serviced Companion Loans
that are Specially Serviced Loans or REO Loans, and the Master Servicer, in the
case of all Performing Loans that it is servicing, shall maintain accurate
records with respect to each related Mortgaged Property reflecting the status of
taxes, assessments and other similar items that are or may become a lien thereon
and the status of insurance premiums payable with respect thereto. With respect
to each Specially Serviced Loan, the Special Servicer shall use its reasonable
efforts, consistent with the Servicing Standard, to collect income statements
and rent rolls from Borrowers as required by the Loan Documents. The Special
Servicer, in the case of Specially Serviced Loans and REO Loans, and the Master
Servicer, in the case of all Performing Loans that it is servicing, shall use
reasonable efforts consistent with the Servicing Standard to, from time to time,
(i) obtain all bills for the payment of such items (including renewal premiums),
and (ii) effect payment of all such bills with respect to such Mortgaged
Properties prior to the applicable penalty or termination date, in each case
employing for such purpose Escrow Payments as allowed under the terms of the
related Mortgage Loan or Serviced Companion Loan. If a Borrower fails to make
any such payment on a timely basis or collections from the Borrower are
insufficient to pay any such item before the applicable penalty or termination
date, the Master Servicer shall advance the amount of any shortfall as a
Property Advance unless the Master Servicer determines in accordance with the
Servicing Standard that such Advance would be a Nonrecoverable Advance (provided
that with respect to advancing insurance premiums or delinquent tax assessments
the Master Servicer shall comply with the provisions of the second to last
paragraph in Section 3.24(d)). The Master Servicer shall be entitled to
reimbursement of Property Advances, with interest thereon at the Advance Rate,
that it makes pursuant to this Section 3.04 from amounts received on or in
respect of the related Mortgage Loan or Serviced Whole Loan respecting which
such Advance was made or if such Advance has become a Nonrecoverable Advance, to
the extent permitted by Section 3.06 of this Agreement. No costs incurred by the
Master Servicer in effecting the payment of taxes and assessments on the
Mortgaged Properties shall, for the purpose of calculating distributions to
Certificateholders or Serviced Companion Loan Noteholders, be added to the
amount owing under the related Mortgage Loans or, Serviced Companion Loans,
notwithstanding that the terms of such Mortgage Loans or Serviced Companion
Loans so permit.
(b) The Master Servicer shall segregate and hold all funds collected
and received pursuant to any Mortgage Loan or any Serviced Companion Loan that
it is servicing constituting Escrow Payments separate and apart from any of its
own funds and general assets and shall establish and maintain one or more
segregated custodial accounts (each, an "Escrow Account") into which all Escrow
Payments shall be deposited within two (2) Business Days after receipt and
maintained in accordance with the requirements of the related Mortgage Loan or
Serviced Whole Loan, as applicable, and in accordance with the Servicing
Standard. The Master Servicer shall also deposit into each Escrow Account any
amounts representing losses on Permitted Investments pursuant to Section 3.07(b)
and any Insurance Proceeds or Liquidation Proceeds which are required to be
applied to the restoration or repair of any Mortgaged Property pursuant to the
related Mortgage Loan or Serviced Whole Loan. Escrow Accounts shall be Eligible
Accounts (except to the extent the related Mortgage Loan requires it to be held
in an account that is not an Eligible Account); provided, however, in the event
that the ratings of the financial institution holding such account are
downgraded to a ratings level below that of an Eligible Account (except to the
extent the related Mortgage Loan requires it to be held in an account that is
not an Eligible Account), the Master Servicer shall have 30 Business Days (or
such longer time as confirmed by a written confirmation from the Rating
Agencies, obtained at the expense of the Master Servicer, that such longer time
shall not result in a downgrade, qualification or withdrawal of the then-current
ratings assigned to any of the Certificates or Companion Loan Securities) to
transfer such account to an Eligible Account. Escrow Accounts, other than with
respect to the Ala Moana Portfolio Whole Loan and the Fair Lakes Office
Portfolio Whole Loan, shall be entitled "Capmark Finance Inc., as Master
Servicer, in trust for LaSalle Bank National Association, as Trustee in trust
for Holders of Deutsche Mortgage & Asset Receiving Corporation, CD 2006-CD3
Commercial Mortgage Pass-Through Certificates and Various Borrowers and, if
applicable, Serviced Companion Loan Noteholders," and with respect to the Ala
Moana Portfolio Whole Loan and the Fair Lakes Office Portfolio Whole Loan,
"Wachovia Bank, National Association, as Master Servicer, in trust for LaSalle
Bank National Association, as Trustee in trust for Holders of Deutsche Mortgage
& Asset Receiving Corporation, CD 2006-CD3 Commercial Mortgage Pass-Through
Certificates and Various Borrowers and, if applicable, Serviced Companion Loan
Noteholders." Withdrawals from an Escrow Account may be made by the Master
Servicer only:
(i) to effect timely payments of items constituting Escrow Payments
for the related Mortgage;
(ii) to transfer funds to its Collection Account and/or the
applicable Serviced Whole Loan Collection Account (or any sub-account
thereof) to reimburse the Master Servicer, the Special Servicer or the
Trustee for any Property Advance (with interest thereon at the Advance
Rate) relating to Escrow Payments, but only from amounts received with
respect to the related Mortgage Loan and/or Serviced Whole Loan, as
applicable, which represent late collections of Escrow Payments
thereunder;
(iii) for application to the restoration or repair of the related
Mortgaged Property in accordance with the related Mortgage Loan and/or
Serviced Whole Loan, as applicable, and the Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination
of this Agreement or pay-off of the related Mortgage Loan or Serviced
Whole Loan, as applicable;
(v) to pay from time to time to the related Borrower any interest or
investment income earned on funds deposited in the Escrow Account if such
income is required to be paid to the related Borrower under law or by the
terms of the Mortgage Loan or Serviced Whole Loan, or otherwise to the
Master Servicer; or
(vi) to remove any funds deposited in an Escrow Account that were
not required to be deposited therein or to refund amounts to Borrowers
determined to be overages.
(c) The Master Servicer shall, as to each Mortgage Loan and each
Serviced Companion Loan that it is servicing, (i) maintain accurate records with
respect to the 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 and (ii) use reasonable efforts to obtain, from time to time, all bills
for (or otherwise confirm) the payment of such items (including renewal
premiums) and, for such Mortgage Loans and Serviced Companion Loans that require
the related Borrower to escrow for such items, shall effect payment thereof
prior to the applicable penalty or termination date. For purposes of effecting
any such payment for which it is responsible, the Master Servicer shall apply
Escrow Payments as allowed under the terms of the related Mortgage Loan and
Serviced Companion Loan (or, if such Mortgage Loan or Serviced Companion Loan
does not require the related Borrower to escrow for the payment of real estate
taxes, assessments, insurance premiums, ground rents (if applicable) and similar
items, the Master Servicer shall use reasonable efforts consistent with the
Servicing Standard to cause the related Borrower to comply with the requirement
of the related Mortgage that the Borrower 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). Subject to Section 3.24, the Master
Servicer shall timely make a Property Advance with respect to the Mortgage Loans
and Serviced Whole Loans that it is servicing, if any, to cover any such item
which is not so paid, including any penalties or other charges arising from the
Borrower's failure to timely pay such items.
Section 3.05 Collection Account; Excess Liquidation Proceeds
Account; Distribution Accounts; Interest Reserve Account and Serviced Whole Loan
Collection Accounts. (a) The Master Servicer shall establish and maintain its
Collection Account, for the benefit of the Certificateholders and the Trustee as
the Holder of the Lower-Tier Regular Interests. Such Collection Account shall be
established and maintained as an Eligible Account. Amounts attributable to the
Mortgage Loans will be assets of the Lower-Tier REMIC. Amounts attributable to
the Serviced Companion Loans will not be assets of the Trust Fund.
The Master Servicer shall deposit or cause to be deposited in its
Collection Account within one Business Day following receipt the following
payments and collections received or made by or on behalf of it on or with
respect to the Mortgage Loans (including the ShopKo Portfolio Mortgage Loan to
the extent received from the CGCMT 2006-C4 Master Servicer or the CGCMT 2006-C4
Special Servicer) subsequent to the Cut-off Date:
(i) all payments on account of principal on the Mortgage Loans
(other than any Mortgage Loan related to a Serviced Whole Loan), including
the principal component of all Unscheduled Payments;
(ii) all payments on account of interest on the Mortgage Loans
(other than any Mortgage Loan related to a Serviced Whole Loan) (net of
the related Servicing Fees), including Prepayment Premiums, Default
Interest, Yield Maintenance Charges, Excess Interest and the interest
component of all Unscheduled Payments;
(iii) any amounts required to be deposited pursuant to Section
3.07(b), in connection with net losses realized on Permitted Investments
with respect to funds held in the Collection Account ;
(iv) all Net REO Proceeds withdrawn from the related REO Account
(other than the Serviced Whole Loan REO Account) pursuant to Section
3.17(b);
(v) any amounts received from Borrowers which represent recoveries
of Property Protection Expenses and are allocable to the Mortgage Loans
(other than any Mortgage Loan related to a Serviced Whole Loan), to the
extent not permitted to be retained by the Master Servicer as provided
herein;
(vi) all Insurance Proceeds and Liquidation Proceeds received in
respect of any Mortgage Loan (other than any Mortgage Loan related to a
Serviced Whole Loan) or any REO Property (other than REO Property related
to a Serviced Whole Loan), other than Excess Liquidation Proceeds and
Liquidation Proceeds that are received in connection with a purchase 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, together with any amounts representing recoveries of
Nonrecoverable Advances, including any recovery of Unliquidated Advances,
in respect of the related Mortgage Loans (other than any Mortgage Loan
related to a Serviced Whole Loan); provided, however, that any Liquidation
Proceeds related to a sale pursuant to Section 3.18 hereof or pursuant to
the related Co-Lender Agreement of a Mortgage Loan included in a Serviced
Whole Loan shall be deposited directly into the Collection Account and
applied solely to pay expenses relating to that Mortgage Loan and to
Available Funds;
(vii) Penalty Charges on the Mortgage Loans (other than any Mortgage
Loan related to a Serviced Whole Loan) to the extent required to offset
interest on Advances and Additional Trust Fund Expenses pursuant to
Section 3.12(d);
(viii) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.08(b) in connection with
losses resulting from a deductible clause in a blanket or master
force-placed policy in respect of the Mortgage Loans (other than any
Mortgage Loan related to a Serviced Whole Loan);
(ix) any other amounts required by the provisions of this Agreement
(including without limitation any amounts to be transferred from the
Serviced Whole Loan Collection Account pursuant to Section 3.06(c)(i)(B)
and, with respect to the B Loans or any mezzanine indebtedness that may
exist on a future date, all amounts received pursuant to the cure and
purchase rights or reimbursement obligations set forth in the related
Co-Lender Agreement or mezzanine intercreditor agreement, as applicable)
to be deposited into the related Collection Account by the Master Servicer
or Special Servicer;
(x) any Servicer Prepayment Interest Shortfalls in respect of the
Mortgage Loans that the Master Servicer is servicing (other than any
Mortgage Loan related to a Serviced Whole Loan) pursuant to Section
4.01(i); and
(xi) any Loss of Value Payments, as set forth in Section 3.06(f).
In the case of Excess Liquidation Proceeds, the Master Servicer
shall make appropriate ledger entries received with respect thereto, which the
Master Servicer shall hold for (i) the Trustee for the benefit of the Class or
Classes of Certificateholders (other than the Class T Certificates) and (ii) for
the benefit of any Serviced Companion Loan Noteholder entitled thereto. Any
Excess Liquidation Proceeds shall be identified separately from any other
amounts held in each Collection Account (with amounts attributable to each Class
or Classes and any Serviced Companion Loan also identified separately).
The foregoing requirements for deposits in each Collection Account
shall be exclusive, it being understood and agreed that, without limiting the
generality of the foregoing, payments in the nature of late payment charges
(subject to Section 3.12 hereof), Assumption Fees, loan modification fees, loan
service transaction fees, extension fees, demand fees, beneficiary statement
charges and similar fees need not be deposited in the Collection Account by the
related Master Servicer and, to the extent permitted by applicable law, the
Master Servicer or the Special Servicer, as applicable in accordance with
Section 3.12 hereof, shall be entitled to retain any such charges and fees
received with respect to the Mortgage Loans that it is servicing as additional
compensation. In the event that a Master Servicer deposits in its Collection
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from its Collection Account, any provision herein to the
contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i), (ii),
(v), (vi) and (vii) above with respect to any Specially Serviced Loan which is
not an REO Loan, the Special Servicer shall remit within one Business Day after
receipt such amounts to the Master Servicer for deposit into its Collection
Account in accordance with the second paragraph of this Section 3.05, unless the
Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an REO Property (other than any REO Property related to the Serviced
Whole Loans) shall be deposited by the Special Servicer into the REO Account and
remitted to the Master Servicer for deposit into its Collection Account pursuant
to Section 3.17(b). 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 Master Servicer and shall promptly
deliver any such check to the Master Servicer by overnight courier.
(b) The Trustee shall establish and maintain the Lower-Tier
Distribution Account in its own name, in trust for the benefit of the
Certificateholders and the Trustee as the Holder of the Lower-Tier Regular
Interests, respectively. The Lower-Tier Distribution Account shall each be
established and maintained as an Eligible Account or as a subaccount of an
Eligible Account.
(c) The Trustee shall establish and maintain the Grantor Trust
Distribution Account with respect to the Excess Interest, which shall be an
asset of the Grantor Trust and beneficially owned by the Holders of the Class T
Certificates and shall not be an asset of either Trust REMIC . The Grantor Trust
Distribution Account shall be established and maintained as an Eligible Account
or as a subaccount of an Eligible Account. Following the distribution of Excess
Interest to the Class T 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 Trustee shall terminate the Grantor Trust
Distribution Account.
(d) With respect to each Distribution Date, the Master Servicer
shall deliver to the Trustee on or before the Servicer Remittance Date the funds
then on deposit in its Collection Account after giving effect to withdrawals of
funds pursuant to Section 3.06 and deposits from the Serviced Whole Loan
Collection Account pursuant to Section 3.06. Upon receipt from the Master
Servicer of such amounts held in its Collection Account, the Trustee shall
deposit (A) in the Lower-Tier Distribution Account (i) the amount of Available
Funds to be distributed pursuant to Section 4.01 hereof on such Distribution
Date and (ii) the amount of Excess Liquidation Proceeds allocable to any
Mortgage Loan (other than a Serviced Whole Loan) to be deposited into the
Lower-Tier Distribution Account (which the Trustee shall then deposit in the
Excess Liquidation Proceeds Account) pursuant to Section 3.06, (B) Withheld
Amounts to be deposited into the Interest Reserve Account pursuant to Section
3.05(f), (C) at the direction of the Trustee, the Trustee Fee which shall be
retained by the Trustee, and (D) in the Grantor Trust Distribution Account the
Excess Interest to be distributed to the Class T Certificateholders.
(e) If any Loss of Value Payments are received in connection with a
Material Defect or Material Breach, as the case may be, pursuant to or as
contemplated by Section 2.03(d), the Special Servicer shall establish and
maintain one or more non-interest bearing accounts (collectively, the "Loss of
Value Reserve Fund") to be held in trust for the benefit of the
Certificateholders, for purposes of holding such Loss of Value Payments. Each
account that constitutes the Loss of Value Reserve Fund shall be an Eligible
Account or a sub-account of an Eligible Account. The Special Servicer shall,
upon receipt, deposit in the Loss of Value Reserve Fund all Loss of Value
Payments received by it. The Trustee and the Special Servicer shall account for
the Loss of Value Reserve Fund as an "outside reserve fund" within the meaning
of Treasury Regulations Section 1.860G-2(h) and not an asset of any REMIC.
Furthermore, for all federal tax purposes, the Trustee and the Special Servicer
shall (i) treat amounts paid out of the Loss of Value Reserve Fund through the
Collection Account to the Certificateholders as distributions by the REMICs and
(ii) treat any amounts paid out of the Loss of Value Reserve Fund through the
Collection Account to a Mortgage Loan Seller as distributions by the Trust Fund
to such Mortgage Loan Seller as beneficial owner of the Loss of Value Reserve
Fund. The applicable Mortgage Loan Seller will be the beneficial owner of the
Loss of Value Reserve Fund for all federal income tax purposes, and shall be
taxable on all income earned thereon.
(f) The Trustee shall establish and maintain the Interest Reserve
Account in its own name, in trust for the benefit of the Certificateholders
(other than the Class T Certificateholders). The Interest Reserve Account shall
be established and maintained as an Eligible Account or as a subaccount of an
Eligible Account.
On each Servicer Remittance Date occurring in (i) January of each
calendar year that is not a leap year and (ii) February of each calendar year,
unless in either case such Servicer Remittance Date is the final Servicer
Remittance Date, the Trustee shall calculate the Withheld Amounts. On each such
Servicer Remittance Date, the Trustee shall, with respect to each Mortgage Loan
that does not accrue interest on the basis of a 360-day year of twelve 30-day
months, withdraw from the Lower-Tier Distribution Account and deposit in the
Interest Reserve Account an amount equal to the aggregate of the Withheld
Amounts calculated in accordance with the previous sentence. If the Trustee
shall deposit in the Interest Reserve Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Interest
Reserve Account any provision herein to the contrary notwithstanding. On or
prior to the Servicer Remittance Date in March of each calendar year (or in
February if the final Distribution Date will occur in such month), the Trustee
shall transfer to the Lower-Tier Distribution Account the aggregate of all
Withheld Amounts on deposit in the Interest Reserve Account.
(g) The Trustee shall establish and maintain the Upper-Tier
Distribution Account in its own name, in trust for the benefit of the
Certificateholders. The Upper-Tier Distribution Account shall be established and
maintained as an Eligible Account or a subaccount of an Eligible Account.
Promptly on each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account and deposit in the Upper-Tier Distribution
Account on or before such date the Lower-Tier Distribution Amount and the amount
of any Prepayment Premiums and Yield Maintenance Charges for such Distribution
Date to be distributed in respect of the Lower-Tier Regular Interests pursuant
to Section 4.01(a)(ii) and Section 4.01(c) hereof on such date.
(h) With respect to each Serviced Whole Loan, the Master Servicer
shall maintain, or cause to be maintained, a Serviced Whole Loan Collection
Account in which the Master Servicer shall deposit or cause to be deposited
within one Business Day following receipt the following payments and collections
received or made by or on behalf of it on such Serviced Whole Loan subsequent to
the Cut-off Date:
(i) all payments on account of principal on such Serviced Whole
Loan, including the principal component of Unscheduled Payments;
(ii) all payments on account of interest on such Serviced Whole Loan
(net of the related Servicing Fees), including Prepayment Premiums,
Default Interest, Yield Maintenance Charges and the interest component of
all Unscheduled Payments;
(iii) any amounts required to be deposited pursuant to Section
3.07(b), in connection with net losses realized on Permitted Investments
with respect to funds held in such Serviced Whole Loan Collection Account;
(iv) all Net REO Proceeds withdrawn from the related REO Account in
respect of such Serviced Whole Loan pursuant to Section 3.17(b);
(v) any amounts received from Borrowers which represent recoveries
of Property Protection Expenses and are allocable to such Serviced Whole
Loan, to the extent not permitted to be retained by the Master Servicer as
provided herein;
(vi) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of such Serviced Whole Loan or any related
REO Property, together with any amounts representing recoveries of
Nonrecoverable Advances, including any recovery of Unliquidated Advances,
in respect of such Serviced Whole Loan; provided further, however, that
any Liquidation Proceeds related to a sale pursuant to Section 3.18 or
Section 9.01 hereof or pursuant to the related Co-Lender Agreement of a
Mortgage Loan included in a Serviced Whole Loan shall be deposited
directly into the Collection Account or Lower-Tier Distribution Account,
as applicable, and applied solely to pay expenses relating to that
Mortgage Loan and to Available Funds;
(vii) Penalty Charges on such Serviced Whole Loan to the extent
required to offset interest on Advances and Additional Trust Fund Expenses
pursuant to Section 3.12(d);
(viii) any amounts required to be deposited by the Master Servicer
or the Special Servicer pursuant to Section 3.08(b) in connection with
losses resulting from a deductible clause in a blanket or master
force-placed policy in respect of the Mortgage Loan included in such
Serviced Whole Loan;
(ix) any other amounts required by the provisions of this Agreement
to be deposited into the applicable Serviced Whole Loan Collection Account
by the Master Servicer or Special Servicer;
(x) with respect to any Serviced Whole Loans, cure payments remitted
by any Serviced Companion Loan Noteholder pursuant to the related
Co-Lender Agreement; and
(xi) any Servicer Prepayment Interest Shortfalls in respect of the
Mortgage Loan included in such Serviced Whole Loan pursuant to Section
4.01(i).
The foregoing requirements for deposits into the applicable Serviced
Whole Loan Collection Account shall be exclusive, it being understood and agreed
that, without limiting the generality of the foregoing, payments in the nature
of late payment charges (subject to Section 3.12 hereof), Assumption Fees, loan
modification fees, loan service transaction fees, extension fees, demand fees,
beneficiary statement charges and similar fees need not be deposited into the
applicable Serviced Whole Loan Collection Account by the Master Servicer and, to
the extent permitted by applicable law, the Master Servicer or the Special
Servicer, as applicable in accordance with Section 3.12 hereof, shall be
entitled to retain any such charges and fees received with respect to the
Serviced Whole Loans as additional compensation. In the event that the Master
Servicer deposits in the applicable Serviced Whole Loan Collection Account any
amount not required to be deposited therein, it may at any time withdraw such
amount from such Serviced Whole Loan Collection Account, any provision herein to
the contrary notwithstanding.
Each Serviced Whole Loan Collection Account shall be maintained as a
segregated account, separate and apart from any trust fund created for
mortgage-backed securities of other series and the other accounts of the Master
Servicer; provided, however, that such Serviced Whole Loan Collection Account
may be a sub-account of the Collection Account but shall, for purposes of this
Agreement, be treated as a separate account. Each Serviced Whole Loan Collection
Account shall be established and maintained as an Eligible Account or as a
subaccount of an Eligible Account.
Upon receipt of any of the foregoing amounts described in clauses
(i), (ii), (v), (vi) and (vii) of the first paragraph of this Section 3.05(h)
with respect to each Serviced Whole Loan for so long as it is a Specially
Serviced Loan but is not an REO Loan, the Special Servicer shall remit within
one Business Day such amounts to the Master Servicer for deposit into the
applicable Serviced Whole Loan Collection Account in accordance with the first
paragraph of this Section 3.05(h), unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement or other appropriate reason. Any
such amounts received by the Special Servicer with respect to an REO Property
related to any Serviced Whole Loan shall initially be deposited by the Special
Servicer into the Serviced Whole Loan REO Account and remitted to the Master
Servicer for deposit into the applicable Serviced Whole Loan Collection Account
pursuant to Section 3.17(b). 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 Master Servicer and shall
promptly deliver any such check to the Master Servicer by overnight courier.
(i) Notwithstanding anything to the contrary contained herein with
respect to each Due Date and each Serviced Companion Loan, within one Business
Day of receipt from the related Borrower, the Master Servicer shall remit, from
amounts on deposit in the applicable Serviced Whole Loan Collection Account in
accordance with Section 3.06(c)(i)(A), to the applicable Serviced Companion Loan
Noteholder by wire transfer in immediately available funds to the account of
such Serviced Companion Loan Noteholder or an agent therefor appearing on the
Serviced Companion Loan Noteholder Register on the related date such amounts as
are required to be remitted (or, if no such account so appears or information
relating thereto is not provided at least five (5) Business Days prior to the
date such amounts are required to be remitted, by check sent by first-class mail
to the address of such Serviced Companion Loan Noteholder or its agent appearing
on the Serviced Companion Loan Noteholder Register) the portion of the
applicable Serviced Whole Loan Remittance Amount allocable to such Serviced
Companion Loan Noteholder.
(j) Prior to the Servicer Remittance Date relating to any Collection
Period in which Excess Liquidation Proceeds are received, the Trustee shall
establish and maintain the Excess Liquidation Proceeds Account, which may have
one or more subaccounts, to be held in its own name, in trust for the benefit of
the Certificateholders and, with respect to each Serviced Whole Loan, the
related Serviced Companion Loan Noteholders. Each account that constitutes an
Excess Liquidation Proceeds Account shall be an Eligible Account. On each
Servicer Remittance Date, the Master Servicer shall withdraw from the Collection
Account or, if allocable to any Serviced Whole Loan, the Master Servicer shall
withdraw from the applicable Serviced Whole Loan Collection Account, and remit
to the Trustee (i) in the case of the Mortgage Loans (other than the Serviced
Whole Loans), for deposit in the Lower-Tier Distribution Account (which the
Trustee shall then deposit in the Excess Liquidation Proceeds Account), and (ii)
in the case of the Serviced Whole Loans, for deposit in the Excess Liquidation
Proceeds Account, all Excess Liquidation Proceeds received during the Collection
Period ending on the Determination Date immediately prior to such Servicer
Remittance Date which are allocable to a Mortgage Loan or Serviced Whole Loan;
provided that on the Business Day prior to the final Distribution Date, the
Trustee shall withdraw from the Excess Liquidation Proceeds Account and deposit
in the Lower-Tier Distribution Account (after allocation to any related Serviced
Companion Loan as provided in Section 4.01(e)), for distribution on such
Distribution Date, any and all amounts then on deposit in the Excess Liquidation
Proceeds Account attributable to the Mortgage Loans.
(k) Funds in the Collection Account, the Serviced Whole Loan
Collection Account and the REO Account may be invested in Permitted Investments
in accordance with the provisions of Section 3.07.
The Master Servicer shall give written notice to the Depositor, the
Trustee, the other Master Servicer and the Special Servicer of the location and
account number of its Collection Account and, if applicable, the Serviced Whole
Loan Collection Accounts as of the Closing Date and shall notify the Depositor,
the Special Servicer and the Trustee, as applicable, in writing prior to any
subsequent change thereof. In addition, the Master Servicer shall provide notice
to each affected holder of a Serviced Companion Loan of the location and account
number of the relevant Serviced Whole Loan Collection Account as well as notice
in writing prior to any subsequent change thereof. The Trustee shall give
written notice to the Depositor, the Special Servicer and the Master Servicer of
the location and account number of the Interest Reserve Account and the
Distribution Accounts as of the Closing Date and shall notify the Depositor, the
Special Servicer and the Master Servicer, as applicable, in writing prior to any
subsequent change thereof.
Section 3.06 Permitted Withdrawals from the Collection Account, the
Distribution Accounts and the Serviced Whole Loan Collection Accounts; Trust
Ledger.
(a) [Reserved]
(b) The Master Servicer shall maintain a separate Trust Ledger with
respect to the Mortgage Loans that it is servicing on which it shall make ledger
entries as to amounts deposited (or credited) or withdrawn (or debited) with
respect thereto. On each Servicer Remittance Date, with respect to each Mortgage
Loan (other than any Mortgage Loan related to a Serviced Whole Loan unless
otherwise specified in clauses (i), (ii), (v), (vi), (xi), (xii), (xiii), (xiv),
(xviii), (xix) and (xxi) of this Section 3.06(b)), the Master Servicer shall
make withdrawals from amounts allocated thereto in its Collection Account (and
may debit the Trust Ledger) for the purposes listed below (the order set forth
below not constituting an order of priority for such withdrawals). Unless
otherwise specified in this subsection references to Collection Account and
Mortgage Loans shall be references to the applicable Collection Account and
Mortgage Loans serviced by the applicable Master Servicer, respectively;
provided that with respect to any amount that is required to be paid in this
section 3.06(b) out of general collections on the Mortgage Loans (or otherwise
described as being reimburseable from amounts on deposit in the Collection
Account without restriction to a specific source), to the extent that as of any
Servicer Remittance Date such amounts are insufficient to pay in full the
intended amount specified in this Section 3.06(b), the remainder of such amounts
will be withdrawn from the other Collection Account and paid for by the
applicable other Master Servicer to its intended recipient. Each Master Servicer
agrees to provide information to the other Master Servicer from time to time as
to amounts anticipated to be paid from the other Master Servicer's Collection
Account. On the Business Day following a Determination Date, a Master Servicer
will advise the other Master Servicer as to any amounts that such Master
Servicer is seeking payment from the other Master Servicer's Collection Account
and the other Master Servicer shall make any such payment on the following
Servicer Remittance Date:
(i) on or before 1:00 P.M. (New York City time) on each Servicer
Remittance Date, to remit to the Trustee the amounts to be deposited into
the Grantor Trust Distribution Account (in respect of Excess Interest) and
the Lower-Tier Distribution Account (including any amount transferred from
the Serviced Whole Loan Collection Account in respect of each Mortgage
Loan that is part of a Serviced Whole Loan) (including without limitation
the aggregate of the Available Funds, Prepayment Premiums, Yield
Maintenance Charges and Excess Liquidation Proceeds) which the Trustee
shall then deposit into the Grantor Trust Distribution Account, the
Interest Reserve Account and the Excess Liquidation Proceeds Account,
pursuant to Sections 3.05(c), 3.05(f) and 3.05(j), respectively;
(ii) to pay (A) itself, unpaid Servicing Fees (subject to Section
3.12(a)); and the Special Servicer, unpaid Special Servicing Fees,
Liquidation Fees and Workout Fees in respect of each Mortgage Loan,
Specially Serviced Loan and REO Loan (exclusive of each Mortgage Loan or
REO Loan included in the Serviced Whole Loan), as applicable, the Master
Servicer's or Special Servicer's, as applicable, rights to payment of
Servicing Fees and Special Servicing Fees, Liquidation Fees and Workout
Fees pursuant to this clause (ii)(A) with respect to any Mortgage Loan,
Specially Serviced Loan or REO Loan (exclusive of each Mortgage Loan or
REO Loan included in the Serviced Whole Loan), as applicable, being
limited to amounts received on or in respect of such Mortgage Loan,
Specially Serviced Loan or REO Loan, as applicable (whether in the form of
payments, Liquidation Proceeds, Insurance Proceeds or Condemnation
Proceeds), that are allocable as recovery of interest thereon and (B) each
month to the Special Servicer any unpaid Special Servicing Fees,
Liquidation Fees and Workout Fees in respect of each Specially Serviced
Loan or REO Loan, as applicable, remaining unpaid out of general
collections on the Mortgage Loans, Specially Serviced Loans and REO
Properties, but in the case of each Serviced Whole Loan, only to the
extent that amounts on deposit in the applicable Serviced Whole Loan
Collection Account are insufficient therefor;
(iii) to reimburse itself or the Trustee, as applicable (in reverse
of such order with respect to any Mortgage Loan), for xxxxxxxxxxxx X&X
Advances (other than Nonrecoverable Advances, which are reimbursable
pursuant to clause (v) below, and exclusive of the Mortgage Loans or REO
Loans included in the Serviced Whole Loans), the Master Servicer's or the
Trustee's right to reimbursement pursuant to this clause (iii) being
limited to amounts received which represent Late Collections for the
applicable Mortgage Loan (exclusive of the Mortgage Loan or REO Loan
included in the Serviced Whole Loan) during the applicable period;
provided, however, that if such P&I Advance becomes a Workout-Delayed
Reimbursement Amount, then such P&I Advance shall thereafter be reimbursed
from amounts recovered on the related Mortgage Loan intended by the
modified loan documents to be applied to reimburse such Workout-Delayed
Reimbursement Amount and then from the portion of general collections and
recoveries on or in respect of all of the Mortgage Loans and REO
Properties on deposit in the Collection Account from time to time that
represent collections or recoveries of principal to the extent provided in
clause (v) below;
(iv) to reimburse itself and the Special Servicer or the Trustee, as
applicable (in reverse of such order with respect to any Mortgage Loan or
REO Property) (exclusive of the Mortgage Loans or REO Loans included in
the Serviced Whole Loans or any REO Property securing any Serviced Whole
Loan), for unreimbursed Property Advances, the Master Servicer's, the
Special Servicer's or the Trustee's respective rights to receive payment
pursuant to this clause (iv) with respect to any Mortgage Loan or REO
Property being limited to, as applicable, payments received from the
related Borrower which represent reimbursements of such Property Advances,
Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds and REO
Proceeds with respect to the applicable Mortgage Loan or REO Property;
provided, however, that if such Property Advance becomes a Workout-Delayed
Reimbursement Amount, then such Property Advance shall thereafter be
reimbursed from amounts recovered on the related Mortgage Loan intended by
the modified loan documents to be applied to reimburse such
Workout-Delayed Reimbursement Amount and then from the portion of general
collections and recoveries on or in respect of the Mortgage Loans and REO
Properties on deposit in the Collection Account from time to time that
represent collections or recoveries of principal to the extent provided in
clause (v) below;
(v) (1) to reimburse itself, and the Special Servicer or the
Trustee, as applicable (in reverse of such order with respect to any
Mortgage Loan or REO Property), (x) with respect to Nonrecoverable
Advances, first, out of Liquidation Proceeds, Insurance Proceeds,
Condemnation Proceeds and REO Proceeds received on the related Mortgage
Loan and related REO Properties, second, out of the principal portion of
general collections on the Mortgage Loans and REO Properties, and then, to
the extent the principal portion of general collections is insufficient
and with respect to such deficiency only, subject to any election at its
sole discretion to defer reimbursement thereof pursuant to this Section
3.06(b), out of other collections on the Mortgage Loans and REO Properties
and (y) with respect to the Workout-Delayed Reimbursement Amounts, out of
the principal portion of the general collections on the Mortgage Loans and
REO Properties, net of such amounts being reimbursed pursuant to the
preceding clause (x) above, but in the case of either clause (x) or (y)
above with respect to each Serviced Whole Loan, only to the extent that
amounts on deposit in the applicable Serviced Whole Loan Collection
Account are insufficient therefor after taking into account any allocation
set forth in the related Co-Lender Agreement and (2) to pay itself or the
Special Servicer out of general collections on the Mortgage Loans and REO
Properties, with respect to any Mortgage Loan or REO Property any related
earned Servicing Fee, Special Servicing Fee, Liquidation Fee or Workout
Fee, as applicable, 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 Collection Account
of all amounts received in connection therewith, but in the case of each
Serviced Whole Loan, only to the extent that amounts on deposit in the
applicable Serviced Whole Loan Collection Account are insufficient
therefor;
(vi) at such time as it reimburses itself and the Special Servicer
or the Trustee, as applicable (in reverse of such order with respect to
any Mortgage Loan or REO Property), for (1) any xxxxxxxxxxxx X&X Advance
(including any such P&I Advance that constitutes a Workout-Delayed
Reimbursement Amount) made with respect to a Mortgage Loan pursuant to
clause (iii) above, to pay itself or the Trustee, as applicable, any
Advance Interest Amounts accrued and payable thereon, (2) any unreimbursed
Property Advances (including any such Advance that constitutes a
Workout-Delayed Reimbursement Amount) made with respect to a Mortgage Loan
or REO Property pursuant to clause (iv) above, to pay itself, the Special
Servicer or the Trustee, as the case may be, any Advance Interest Amounts
accrued and payable thereon or (3) any Nonrecoverable P&I Advances made
with respect to a Mortgage Loan or REO Property and any Nonrecoverable
Property Advances made with respect to a Mortgage Loan or REO Property or
any Workout-Delayed Reimbursement Amounts pursuant to clause (v) above, to
pay itself, the Special Servicer or the Trustee, as the case may be, any
Advance Interest Amounts accrued and payable thereon, in each case first
from Penalty Charges as provided in Section 3.12(d), but in the case of a
Serviced Whole Loan only to the extent that such Nonrecoverable Advance
has been reimbursed and only to the extent that amounts on deposit in the
applicable Serviced Whole Loan Collection Account are insufficient
therefor after taking into account any allocation set forth in the related
Co-Lender Agreement;
(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
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
obligation, together with interest thereon at the Advance Rate, each such
Person's right to reimbursement pursuant to this clause (vii) with respect
to any Mortgage Loan (exclusive of any Mortgage Loan included in the
Serviced Whole Loan) being limited to that portion of the Repurchase Price
paid for such Mortgage Loan that represents such expense in accordance
with clause (e) of the definition of Repurchase Price;
(viii) to pay itself all Prepayment Interest Excesses on the
Mortgage Pool (exclusive of any Mortgage Loan or the REO Loan included in
the Serviced Whole Loan) not required to be used pursuant to Section
3.19(c);
(ix) (A) to pay itself, as additional servicing compensation in
accordance with Section 3.12(a), (1) interest and investment income earned
in respect of amounts relating to the Trust Fund held in its Collection
Account as provided in Section 3.07(b) (but only to the extent of the net
investment earnings with respect to such Collection Account for any period
from any Distribution Date to the immediately succeeding Servicer
Remittance Date) and (2) Penalty Charges on the Mortgage Loans (other than
Specially Serviced Loans) (exclusive of any Mortgage Loan or REO Loan
included in the Serviced Whole Loan), (but only to the extent collected
from the related Borrower and to the extent that all amounts then due and
payable with respect to the related Mortgage Loan have been paid and are
not needed to pay interest on Advances in accordance with Section 3.12
and/or Additional Trust Fund Expenses (other than Special Servicing Fees,
Workout Fees or Liquidation Fees); and (B) to pay the Special Servicer, as
additional servicing compensation in accordance with Section 3.12(c),
Penalty Charges on Specially Serviced Loans (exclusive of any Mortgage
Loan or the REO Loan included in the Serviced Whole Loan) (but only to the
extent collected from the related Borrower and to the extent that all
amounts then due and payable with respect to the related Specially
Serviced Loan have been paid and are not needed to pay interest on
Advances, all in accordance with Section 3.12);
(x) [Reserved];
(xi) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, any amounts payable to any such Person
pursuant to Section 6.03(a) (and in the case of a Serviced Whole Loan only
to the extent that such amounts on deposit in the applicable Serviced
Whole Loan Collection Account are insufficient therefor after taking into
account any allocation set forth in the related Co-Lender Agreement);
(xii) to pay for the cost of the Opinions of Counsel contemplated by
Sections 3.10(e), 3.10(f), 3.17(a), 3.17(b) and 11.07 (and in the case of
a Serviced Whole Loan only to the extent that such amounts on deposit in
the applicable Serviced Whole Loan Collection Account are insufficient
therefor after taking into account any allocation set forth in the related
Co-Lender Agreement but exclusive of amounts relating solely to the
related Serviced Companion Loan);
(xiii) 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 Servicer, the Special Servicer or the
Trustee is liable therefor pursuant to this Agreement, except to the
extent such amounts relate solely to the Serviced Whole Loans, in which
case, such amounts will be reimbursed first from the applicable Serviced
Whole Loan Collection Account(s) in accordance with Section 3.06(c) and
then out of general collections on the Mortgage Loans;
(xiv) to reimburse the Trustee out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund, except to the extent such amounts
relate solely to a Serviced Whole Loan, in which case, such amounts will
be reimbursed first, from the applicable Serviced Whole Loan Collection
Account(s) in accordance with Section 3.06(c) and then, out of general
collections on the Mortgage Loans;
(xv) to pay any Person permitted to purchase a Mortgage Loan under
Section 3.18 with respect to each Mortgage Loan (exclusive of any Mortgage
Loan included in the Serviced Whole Loan), if any, previously purchased by
such Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase relating to periods after the date of
purchase;
(xvi) [Reserved];
(xvii) [Reserved]
(xviii) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, any amount specifically
required to be paid to such Person at the expense of the Trust Fund under
any provision of this Agreement to which reference is not made in any
other clause of this Section 3.06(b) (and in the case of a Serviced Whole
Loan only to the extent that such amounts on deposit in the applicable
Serviced Whole Loan Collection Account are insufficient therefor after
taking into account any allocation set forth in the related Co-Lender
Agreement), it being acknowledged that this clause (xviii) shall not be
construed to modify any limitation or requirement otherwise set forth in
this Agreement as to the time at which any Person is entitled to payment
or reimbursement of any amount or as to the funds from which any such
payment or reimbursement is permitted to be made;
(xix) to withdraw from the Collection Account any sums deposited
therein in error and pay such sums to the Persons entitled thereto
(including any amounts relating to a Mortgage Loan that is part of a
Serviced Whole Loan);
(xx) [Reserved];
(xxi) to pay from time to time to itself in accordance with Section
3.07(b) any interest or investment income earned on funds deposited in its
Collection Account;
(xxii) [Reserved];
(xxiii) to pay itself, the Special Servicer or the related Mortgage
Loan Seller, as the case may be, with respect to each Mortgage Loan, if
any, previously purchased or substituted (i.e., replaced) by such Person
pursuant to or as contemplated by this Agreement, all amounts received on
such Mortgage Loan subsequent to the date of purchase or substitution,
and, in the case of a substitution, with respect to the related Qualifying
Substitute Mortgage Loan(s), all Monthly Payments due thereon during or
prior to the month of substitution, in accordance with the third paragraph
of Section 2.03(f); and
(xxiv) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall pay to the Special Servicer from its
Collection Account amounts permitted to be paid to it therefrom promptly upon
receipt of a certificate of a Servicing Officer of the Special Servicer
describing the item and amount to which the Special Servicer is entitled. The
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 Loan and REO Loan
and the related Serviced Companion Loan, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Collection Account .
The Master Servicer shall keep and maintain separate accounting
records, on a Mortgage Loan by Mortgage Loan basis, reflecting amounts allocable
to each Mortgage Loan, and on a property-by-property basis when appropriate, for
the purpose of justifying any withdrawal, debit or credit from its Collection
Account or the Trust Ledger. Upon request, the Master Servicer shall provide to
the Trustee such records and any other information in the possession of the
Master Servicer to enable the Trustee to determine the amounts attributable to
each Mortgage Loan and the Companion Loans.
The Master Servicer shall pay to the Trustee, the other Master
Servicer or the Special Servicer from the Collection Account amounts permitted
to be paid to the Trustee, the other Master Servicer or the Special Servicer
therefrom, promptly upon receipt of a certificate of a Responsible Officer of
the Trustee or a certificate of a Servicing Officer, as applicable, describing
the item and amount to which such Person is entitled. The Master Servicer may
rely conclusively on any such certificate and shall have no duty to recalculate
the amounts stated therein.
The Trustee, the Special Servicer and the Master Servicer (to the
extent specified in Section 11.12) shall in all cases have a right prior to the
Certificateholders to any funds on deposit in the Collection Account from time
to time for the reimbursement or payment of the Servicing Compensation
(including investment income), Trustee Fees, Special Servicing Compensation,
Advances, Advance Interest Amounts, their respective indemnification payments
(if any) pursuant to Section 6.03, Section 8.05 or Section 11.12, their
respective expenses hereunder to the extent such fees and expenses are to be
reimbursed or paid from amounts on deposit in the Collection Account pursuant to
this Agreement. In addition, the Trustee, the Special Servicer and the Master
Servicer shall in all cases have a right prior to the Certificateholders to any
funds on deposit in the Collection Account from time to time for the
reimbursement or payment of any federal, state or local taxes imposed on either
Trust REMIC .
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 (or with respect to Property Advances, the Serviced Whole Loans)
deposited in both Collection Accounts (or the applicable Serviced Whole Loan
Collection Account) and available for distribution on the next Distribution
Date, the Master Servicer, the Special 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 3.06(b) or Section 3.06(c) immediately, may elect to refrain from
obtaining such reimbursement for such portion of the Nonrecoverable Advance
during the Collection Period ending on the then-current Determination Date for
successive one-month periods for a total period not to exceed 12 months
(provided, however, that any deferment over six months will require the consent
of the Controlling Class Representative). If the Master Servicer (or the Special
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 discretion to elect 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 the Master Servicer (or
the Special 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, the Master Servicer (or the Special Servicer or the Trustee) shall further
be authorized to wait for principal collections on the Mortgage Loans and
Serviced Companion 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,
the Master Servicer shall give each Rating Agency at least 15 days notice prior
to any reimbursement to it of Nonrecoverable Advances from amounts in the
Collection Account allocable to interest on the Mortgage Loans unless (1) the
Master Servicer determines in its sole discretion that waiting 15 days after
such a notice could jeopardize the Master Servicer's ability to recover
Nonrecoverable Advances, (2) changed circumstances or new or different
information becomes known to the Master Servicer 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) the Master Servicer has not timely received from the Trustee
information requested by the 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 shall give each Rating Agency notice
of an anticipated reimbursement to it of Nonrecoverable Advances from amounts in
the Collection Account allocable to interest on the Mortgage Loans as soon as
reasonably practicable in such circumstances. The Master Servicer shall have no
liability for any loss, liability or expense resulting from any notice provided
to each Rating Agency contemplated by the immediately preceding sentence.
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 3.06(b) or to comply with the terms of this Section 3.06(b) and the
other provisions of this Agreement that apply once such an election, if any, has
been made. If the Master Servicer, the Special Servicer or the Trustee, as
applicable, determines, in its sole discretion, that it should recover the
Nonrecoverable Advances without deferral as described above, then the Master
Servicer, the Special Servicer or the Trustee, as applicable, shall be entitled
to immediate reimbursement of Nonrecoverable Advances with interest thereon at
the Advance Rate from all amounts in the Collection Accounts for such
Distribution Date. 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 Advance Rate on such Nonrecoverable Advance
for the period prior to the actual reimbursement of such Nonrecoverable Advance.
The Master Servicer's, the Special Servicer's or the Trustee's, as applicable,
agreement to defer reimbursement of such Nonrecoverable Advances as set forth
above is an accommodation to the Certificateholders and, as applicable, the
Serviced Companion Loan Noteholders and shall not be construed as an obligation
on the part of the Master Servicer, the Special Servicer or the Trustee, as
applicable, or a right of the Certificateholders or the Serviced Companion Loan
Noteholders. Nothing herein shall be deemed to create in the Certificateholders
and the Serviced Companion Loan Noteholders a right to prior payment of
distributions over the Master Servicer's, the Special Servicer's or the
Trustee's, as applicable, right to reimbursement for Advances (deferred or
otherwise). 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 Standard and neither the Master Servicer, the
Special Servicer, the Trustee nor the other parties to this Agreement shall have
any liability to one another or to any of the Certificateholders or any of the
Serviced Companion Loan Noteholders for any such election that such party makes
as contemplated by this Section 3.06(b) or for any losses, damages or other
adverse economic or other effects that may arise from such an election.
None of the Master Servicer, the Special Servicer or the Trustee
shall be permitted to reverse any other Person's determination that an Advance
is a Nonrecoverable Advance.
If either Master Servicer, the Special Servicer or the Trustee, as
applicable, is reimbursed out of general collections for any unreimbursed
Advances that are determined to be Nonrecoverable Advances (together with any
interest accrued and payable thereon), then (for purposes of calculating
distributions on the Certificates) such reimbursement and payment of interest
shall be deemed to have been made: first, out of the Principal Distribution
Amount, which, but for its application to reimburse a Nonrecoverable Advance
and/or to pay interest thereon, would be included in Available Funds for any
subsequent Distribution Date, and second, out of other amounts which, but for
their application to reimburse a Nonrecoverable Advance and/or to pay interest
thereon, would be included in Available Funds for any subsequent Distribution
Date.
If and to the extent that any payment is deemed to be applied as
contemplated in the paragraph above to reimburse a Nonrecoverable Advance or to
pay interest thereon, then the Principal Distribution Amount for such
Distribution Date shall be reduced, to not less than zero, by the amount of such
reimbursement. If and to the extent (i) any Advance is determined to be a
Nonrecoverable Advance, (ii) such Advance and/or interest thereon is reimbursed
out of the Principal Distribution Amount as contemplated above and (iii) the
particular item for which such Advance was originally made is subsequently
collected out of payments or other collections in respect of the related
Mortgage Loan, then the Principal Distribution Amount for the Distribution Date
that corresponds to the Collection Period in which such item was recovered shall
be increased by an amount equal to the lesser of (A) the amount of such item and
(B) any previous reduction in the Principal Distribution Amount for a prior
Distribution Date as contemplated in the paragraph above resulting from the
reimbursement of the subject Advance and/or the payment of interest thereon.
To the extent a Nonrecoverable Advance with respect to a Mortgage
Loan is required to be reimbursed from the principal portion of the general
collections on the Mortgage Loans, such reimbursement shall be made first, from
the principal collections 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 the Principal
Distribution Amount for a Distribution Date is increased due to subsequent
recovery of an Advance previously determined to be Nonrecoverable, such increase
shall be allocated first to the principal collections in the Loan Group with
respect to which the Mortgage Loan as to which the related Nonrecoverable
Advance was made does not belong, and then to the Loan Group with respect to
which the Mortgage Loan as to which the related Nonrecoverable Advance was made
does belong.
To the extent a 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, such reimbursement shall be made
first, from the principal collections 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 the
Principal Distribution Amount for a Distribution Date is increased as set forth
in preceding paragraph, such increase shall be allocated first to the principal
collections in the Loan Group with respect to which the Mortgage Loan as to
which the related Workout-Delayed Reimbursement Amount was reimbursed does not
belong, and then to the Loan Group with respect to which the Mortgage Loan as to
which the related Workout-Delayed Reimbursement Amount was reimbursed does
belong.
(c) The Master Servicer may (and, with respect to clause (i),
shall), from time to time, make withdrawals from the Serviced Whole Loan
Collection Accounts, for any of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to make remittances each month as and when required in an
aggregate amount of immediately available funds equal to the applicable
amounts on deposit in the subject Serviced Whole Loan Collection Account
(taking into account the terms of the applicable Co-Lender Agreement and
the other withdrawals pursuant to this Section 3.06(c)) to (A) the related
Serviced Companion Loan Noteholders in accordance with Section 3.05(i) and
(B) the Collection Account for the benefit of the Trust in accordance with
Section 4.06(b), in each case in accordance with the related Co-Lender
Agreement (provided that Liquidation Proceeds relating to the repurchase
of any Serviced Companion Loan by the related seller thereof shall be
remitted solely to the holder of such Serviced Companion Loan, as the case
may be, and Liquidation Proceeds relating to the repurchase of a Mortgage
Loan related to a Serviced Whole Loan by the related Mortgage Loan Seller
shall be remitted solely to the Collection Account; provided, however,
that any Liquidation Proceeds related to a sale pursuant to Section 3.18
or 9.01 hereof or pursuant to the related Co-Lender Agreement of a
Mortgage Loan included in a Serviced Whole Loan shall be deposited
directly into the Collection Account or Lower-Tier Distribution Account,
as applicable, and applied solely to pay expenses relating to that
Mortgage Loan and to Available Funds);
(ii) to pay (A) to itself unpaid Servicing Fees and to the Special
Servicer unpaid Special Servicing Fees, Liquidation Fees and Workout Fees
in respect of such Serviced Whole Loan and related REO Loan, as
applicable, the Master Servicer's or the Special Servicer's, as
applicable, rights to payment of Servicing Fees, Special Servicing Fees,
Liquidation Fees and Workout Fees, as applicable, pursuant to this clause
(ii)(A) with respect to such Serviced Whole Loan or related REO Loan, as
applicable, being limited to amounts received on or in respect of such
Serviced Whole Loan (whether in the form of payments, Liquidation
Proceeds, Insurance Proceeds or Condemnation Proceeds), or such REO Loan
(whether in the form of REO Proceeds, Liquidation Proceeds, Insurance
Proceeds or Condemnation Proceeds), that are allocable as recovery of
interest thereon and (B) to the Special Servicer, each month to the extent
not covered by clause (ii)(A) above, any unpaid Special Servicing Fees,
Liquidation Fees and Workout Fees in respect of such Serviced Whole Loan
or REO Loan, as applicable, remaining unpaid out of general collections in
the Collection Account as provided in Section 3.06(b)(ii);
(iii) to reimburse itself or the Trustee for xxxxxxxxxxxx X&X
Advances with respect to the applicable Mortgage Loan, or any other master
servicer or trustee making delinquency advances on any Serviced Companion
Loan pursuant to the Serviced Companion Loan Securitization Agreement, the
Master Servicer's, Trustee's, other master servicer and other trustee's
right to reimbursement pursuant to this clause (iii) being limited to
amounts received in the applicable Serviced Whole Loan Collection Account
which represent Late Collections received in respect of such Mortgage Loan
or Serviced Companion Loan, as applicable (as allocable thereto pursuant
to the related Loan Documents and the related Co-Lender Agreement), during
the applicable period; provided, however, that to the extent such amounts
are insufficient to repay such P&I Advances on any Mortgage Loan or
delinquency advances on any Serviced Companion Loan, such P&I Advances or
delinquency advances may be reimbursed from collections on the related
Serviced Whole Loan allocable to the applicable Serviced B Loan(s) (or, in
the case of an advance on a Serviced B Loan, allocable to a more
subordinate B Loan); provided, further, however, that if such P&I Advance
on the applicable Mortgage Loan becomes a Workout-Delayed Reimbursement
Amount, then such P&I Advance shall 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 the Collection Account
from time to time that represent collections or recoveries of principal to
the extent provided in Section 3.06(b)(v) above;
(iv) to reimburse itself, the Trustee or the Special Servicer, as
applicable (in reverse of such order with respect to such Serviced Whole
Loan or REO Property), for unreimbursed Property Advances with respect to
such Serviced Whole Loan or related REO Property, the Master Servicer's,
the Trustee's or the Special Servicer's respective rights to receive
payment pursuant to this clause (iv) being limited to, as applicable,
related payments by the applicable Borrower with respect to such Property
Advance, Liquidation Proceeds, Insurance Proceeds and Condemnation
Proceeds and REO Proceeds with respect to such Serviced Whole Loan;
provided, however, that if such Property Advance becomes a Workout-Delayed
Reimbursement Amount, then such Property Advance shall 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 the
Collection Account from time to time that represent collections or
recoveries of principal to the extent provided in clause (v) below,
provided that the Master Servicer shall collect such Workout-Delayed
Reimbursement Amount first, from collections on, and proceeds of the
applicable Serviced B Loans, if any, and second, to the extent such
Workout-Delayed Reimbursement Amount remains unreimbursed, from the
related Mortgage Loan;
(v) (A) to reimburse itself, the Special Servicer, the Trustee (in
reverse of such order with respect to such Serviced Whole Loan or related
REO Property), as applicable (x) with respect to Nonrecoverable Advances,
first, out of Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds and REO Proceeds received on the related Serviced Whole Loan and
related REO Properties, and second, out of general collections in the
Collection Account as provided in Section 3.06(b) and (y) with respect to
the Workout Delayed Reimbursement Amounts, first, out of the principal
portion of the general collections on the related Serviced Whole Loan and
related REO Properties, net of such amounts being reimbursed pursuant to
the subclause first in the preceding clause (x) above and second out of
general collections in the Collection Account as provided in Section
3.06(b); provided that in the case of both clause (x) and clause (y) of
this clause (v), such reimbursements shall be made first, from collections
on, and proceeds of the applicable Serviced B Loans, if any, and then from
collections on, and proceeds of the related Mortgage Loan (or in the case
of a Serviced Whole Loan with a Pari Passu Companion Loan, the related
Mortgage Loan and Pari Passu Companion Loans, pro rata, in accordance with
their outstanding principal balances) or (B) to pay itself or the Special
Servicer out of general collections on such Serviced Whole Loan and
related REO Properties, with respect to any Mortgage Loan or Mortgage
Loans or REO Property any related earned Servicing Fee, Special Servicing
Fee, Liquidation Fee or Workout Fee, as applicable, that remained unpaid
in accordance with clause (ii) above following a Final Recovery
Determination made with respect to such Serviced Whole Loan or related REO
Property and the deposit into the applicable Serviced Whole Loan
Collection Account of all amounts received in connection therewith;
provided, that any such party's rights to reimbursement pursuant to this
clause (v) with respect to any such Nonrecoverable Advance that is a P&I
Advance, Servicing Fees, Special Servicing Fees, Liquidation Fees or
Workout Fees, as applicable, being limited (except to the extent set forth
in Section 3.06(b)) to amounts on deposit in the applicable Serviced Whole
Loan Collection Account that were received in respect of the particular
Mortgage Loan (as allocable thereto pursuant to the related Loan Documents
and the related Co-Lender Agreement) in the related Serviced Whole Loan as
to which such Nonrecoverable Advance, Servicing Fees, Special Servicing
Fees, Liquidation Fees or Workout Fees, as applicable, were incurred
(provided, however, that to the extent such amounts are insufficient to
repay such Advances on any Mortgage Loan as to which there is a related
Serviced B Loan, such P&I Advances may be reimbursed from collections on
the related Serviced Whole Loan allocable to such B Loan);
(vi) at such time as it reimburses itself, the Special Servicer, the
Trustee, and, with respect to any Serviced Companion Loan pursuant to the
Serviced Companion Loan Securitization Agreement, any other master
servicer or any other trustee thereunder, as applicable, first, from
Penalty Charges pursuant to Section 3.12(d), then, from collections on,
and proceeds of the applicable Serviced B Loan(s), if any (or, in the case
of a delinquency advance on a Serviced B Loan, from collections on and
proceeds of a more subordinate related Serviced B Loan), and then, from
collections on, and proceeds of the Mortgage Loan (or in the case of a
Serviced Whole Loan with a Pari Passu Companion Loan, the related Mortgage
Loan and Pari Passu Companion Loan, pro rata, in accordance with their
outstanding principal balances), in connection with or following the
reimbursement of (A) any P&I Advance or other comparable delinquency
advance with respect to the applicable Mortgage Loan or Serviced Companion
Loan (including any such Advance that constitutes a Workout-Delayed
Reimbursement Amount) pursuant to clause (iii) above, to pay itself, the
Trustee, any other master servicer or other trustee, as applicable, any
Advance Interest Amounts or interest on such comparable delinquency
advance that are/is (in accordance with this Agreement or the related
Serviced Companion Loan Securitization Agreement accrued and payable
thereon, (B) any Property Advances (including any such Advance that
constitutes a Workout-Delayed Reimbursement Amount) pursuant to clause
(iv) above, to pay itself, the Special Servicer or the Trustee, as the
case may be, any Advance Interest Amounts accrued and payable thereon or
(C) any Nonrecoverable Advances pursuant to clause (v) above, to pay
itself, the Special Servicer, the Trustee, any other master servicer or
other trustee, as the case may be, any Advance Interest Amounts accrued
and payable thereon, such party's rights to reimbursement pursuant to this
clause (vi) with respect to any such interest on P&I Advances (including
any such Advance that constitutes a Nonrecoverable Advance or a
Workout-Delayed Reimbursement Amount) or comparable delinquency advance
being limited to amounts on deposit in the applicable Serviced Whole Loan
Collection Account that were received in respect of the particular
Mortgage Loan or Serviced Companion Loan (as allocable thereto pursuant to
the related Loan Documents and the related Co-Lender Agreement) in the
related Serviced Whole Loan as to which such advance relates (provided,
however, that in the case of any Mortgage Loan or Serviced Companion Loan
as to which there is a related Serviced B Loan (or, if such Serviced
Companion Loan is a Serviced B Loan, a more subordinate Serviced B Loan),
such interest on P&I Advances or comparable delinquency advances may be
reimbursed from collections on the related Serviced Whole Loan allocable
to such B Loan (or more subordinate B Loan, as the case may be));
(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 with respect to the Mortgage
Loan or "breach" or "defect" with respect to a Serviced Companion Loan
giving rise to a repurchase 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 obligation, together with interest thereon at the
Advance Rate, each such Person's right to reimbursement pursuant to this
clause (vii) with respect to such Serviced Whole Loan being limited to
that portion of the Repurchase Price paid for the related Mortgage Loan
that represents such expense in accordance with clause (e) of the
definition of Repurchase Price (or, with respect to a Serviced Companion
Loan, a comparable expense);
(viii) to pay itself all Prepayment Interest Excesses on any related
Mortgage Loan included in the Serviced Whole Loan not required to be used
pursuant to Section 3.19(c);
(ix) (A) to pay itself, as additional servicing compensation in
accordance with Section 3.12(a), (1) interest and investment income earned
in respect of amounts relating to such Serviced Whole Loan held in the
applicable Serviced Whole Loan Collection Account as provided in Section
3.07(b) (but only to the extent of the net investment earnings with
respect to such Serviced Whole Loan Collection Account for any period from
any Distribution Date to the immediately succeeding Servicer Remittance
Date) and (2) the pro rata portion of any Penalty Charges, as allocated in
the related Co-Lender Agreement, on the related Mortgage Loan (other than
Specially Serviced Loans) but only to the extent collected from the
related Borrower and to the extent that all amounts then due and payable
with respect to the Serviced Whole Loans have been paid and are not needed
to pay interest on Advances and/or Additional Trust Fund Expenses in
accordance with Section 3.12 and the related Co-Lender Agreement; and (B)
to pay the Special Servicer, as additional servicing compensation in
accordance with the second paragraph of Section 3.12, the pro rata portion
of any Penalty Charges, as allocated in the related Co-Lender Agreement,
on the related Mortgage Loan, as allocated in the related Co-Lender
Agreement, during the period it is a Specially Serviced Loan (but only to
the extent collected from the related Borrower and to the extent that all
amounts then due and payable with respect to the related Specially
Serviced Loan have been paid and are not needed to pay interest on
Advances in accordance with Section 3.12 and/or Additional Trust Fund
Expenses and in accordance with the related Co-Lender Agreement);
(x) to recoup any amounts deposited in such Serviced Whole Loan
Collection Account in error;
(xi) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, any amounts payable to any such Person
pursuant to Sections 6.03(a) or 6.03(b), to the extent that such amounts
relate to such Serviced Whole Loan (as a whole and not just to the
Mortgage Loan therein);
(xii) to pay for the cost of the Opinions of Counsel contemplated by
Sections 3.10(e), 3.10(f), 3.17(a), 3.17(b) and 11.07 to the extent
payable out of the Trust Fund as they relate to such Serviced Whole Loan
(as a whole and not just to the Mortgage Loan therein);
(xiii) to pay out of general collections on such Serviced Whole Loan
and related REO Property any and all federal, state and local taxes
imposed on the Upper-Tier REMIC, the Lower-Tier REMIC, any REMIC that
includes a Serviced Companion Loan or any of their assets or transactions,
together with all incidental costs and expenses, in each case to the
extent that neither the Master Servicer, the Special Servicer nor the
Trustee is liable therefor pursuant to this Agreement and only to the
extent that such amounts relate to the related Mortgage Loan or to the
Serviced Companion Loans (but only to the extent that any Serviced
Companion Loan is included in a REMIC and that resulted in the subject
cost or expense);
(xiv) to reimburse the Trustee out of general collections on such
Serviced Whole Loan and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund related to such Serviced Whole Loan
(as a whole and not just to the Mortgage Loan therein);
(xv) to pay any Person permitted to purchase a Mortgage Loan under
Section 3.18 with respect to the Mortgage Loan included in such Serviced
Whole Loan, if any, previously purchased by such Person pursuant to this
Agreement, all amounts received thereon subsequent to the date of purchase
relating to periods after the date of purchase;
(xvi) to pay to the Master Servicer, the Special Servicer, the
Trustee or the Depositor, as the case may be, to the extent that such
amounts relate to the Mortgage Loan included in such Serviced Whole Loan,
any amount specifically required to be paid to such Person at the expense
of the Trust Fund under any provision of this Agreement to which reference
is not made in any other clause of this Section 3.06(c), it being
acknowledged that payments pursuant to this clause (xvi) will be may
solely from amounts allocable to the related Mortgage Loan and that this
clause (xvi) shall not be construed to modify any limitation or
requirement otherwise set forth in this Agreement as to the time at which
any Person is entitled to payment or reimbursement of any amount or as to
the funds from which any such payment or reimbursement is permitted to be
made;
(xvii) to pay the related Mortgage Loan Seller with respect to the
Mortgage Loan included in such Serviced Whole Loan, if any, previously
purchased or substituted (i.e., replaced) by such Person pursuant to or as
contemplated by this Agreement, all amounts received on such Mortgage Loan
subsequent to the date of purchase or substitution, and, in the case of a
substitution, with respect to the related Qualifying Substitute Mortgage
Loan(s), all Monthly Payments due thereon during or prior to the month of
substitution, in accordance with the third paragraph of Section 2.03(f);
(xviii) to deposit into the Excess Liquidations Proceeds Account,
any Excess Liquidation Proceeds related to such Serviced Whole Loan; and
(xix) to clear and terminate such Serviced Whole Loan Collection
Account at the termination of this Agreement pursuant to Section 9.01.
The 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 any Serviced Whole Loan Collection
Account. All withdrawals with respect to any Serviced Whole Loan shall be made
first from the applicable Serviced Whole Loan Collection Account and then, from
the Collection Account to the extent permitted by Section 3.06(b). Upon request,
the Master Servicer shall provide to the Trustee such records and any other
information in the possession of the Master Servicer to enable the Trustee to
determine the amounts attributable to the Mortgage Loans and the Companion
Loans.
The Master Servicer shall pay to the Special Servicer from the
Serviced Whole Loan Collection Accounts amounts permitted to be paid to it
therefrom promptly upon receipt of a certificate of a Servicing Officer of such
Special Servicer describing the item and amount to which the Special Servicer is
entitled. The 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
Loan included in the Serviced Whole Loan and related REO Loan, on a loan-by-loan
and property-by-property basis, for the purpose of justifying any request for
withdrawal from any Serviced Whole Loan Collection Account.
Any permitted withdrawals under this Section 3.06(c) with respect to
reimbursement for advances or other amounts payable to a Serviced Companion Loan
Trustee shall, if applicable, also be deemed to be a permitted withdrawal for
similar amounts owed to the fiscal agent of the Serviced Companion Loan Trustee,
if any.
Notwithstanding anything to the contrary contained herein, with
respect to each Serviced Companion Loan, the Master Servicer shall withdraw from
the related Serviced Whole Loan Collection Account and remit to the related
Serviced Companion Loan Noteholders, within one Business Day of receipt thereof,
any amounts that represent Late Collections or Principal Prepayments on such
Serviced Companion Loan or any successor REO Loan with respect thereto, that are
received by the Master Servicer subsequent to 5:00 p.m. (New York City time) on
the related Due Date therefor (exclusive of any portion of such amount payable
or reimbursable to any third party in accordance with the related Co-Lender
Agreement or this Agreement), unless such amount would otherwise be included in
the monthly remittance to the holder of such Serviced Companion Loan for such
month.
In the event that the Master Servicer fails, as of 5:00 p.m. (New
York City time) on any Servicer Remittance Date or any other date a remittance
is required to be made, to remit to the Trustee (in respect of the related
Mortgage Loan) or the Serviced Companion Loan Noteholders (in respect of any
related Serviced Companion Loan) any amounts required to be so remitted
hereunder by such date (including any P&I Advance pursuant to Section 4.07 and
any Excess Liquidation Proceeds allocable to the Serviced Companion Loans
pursuant to Section 4.01(e)), the Master Servicer shall pay to the Trustee (in
respect of the Mortgage Loan) or the Serviced Companion Loan Noteholders (in
respect of the Serviced Companion Loan), for the account of the Trustee (in
respect of the Mortgage Loan) or the Serviced Companion Loan Noteholders (in
respect of the Serviced Companion Loans), interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from the time such payment was
required to be made (without regard to any grace period) until (but not
including) the date such late payment is received by the Trustee or the Serviced
Companion Loan Noteholders, as applicable.
(d) On each Servicer Remittance Date, all income and gain realized
from investment of funds to which the Master Servicer or the Special Servicer is
entitled pursuant to Section 3.07(b) shall be subject to withdrawal by the
Master Servicer or the Special Servicer, as applicable.
(e) With respect to the Serviced Whole Loans, if amounts required to
pay the expenses allocable to any related Serviced Companion Loan exceed amounts
on deposit in the Serviced Whole Loan Collection Account and the Master
Servicer, the Special Servicer or the Trustee, as applicable, shall have sought
reimbursement from the Trust Fund with respect to such expenses allocable to
such Serviced Companion Loan, as applicable, the Master Servicer shall seek (on
behalf of the Trust Fund, subject to the related Co-Lender Agreement) payment or
reimbursement from the holder of the related Serviced B Loan, if any, or, if
such Serviced Companion Loan has been deposited into a securitization, out of
general collections in the collection account established pursuant to the
related Serviced Companion Loan Securitization Agreement.
(f) If any Loss of Value Payments are deposited into the Loss of
Value Reserve Fund with respect to any Mortgage Loan or any related REO
Property, then the Special Servicer shall, promptly when needed, transfer such
Loss of Value Payments (up to the remaining portion thereof) from the Loss of
Value Reserve Fund to the Master Servicer for deposit into its Collection
Account for the following purposes:
(i) to reimburse the Master Servicer, the Special Servicer or the
Trustee, in accordance with Section 3.06(b), for any Nonrecoverable
Advance made by such party with respect to such Mortgage Loan or any
related REO Property (together with interest thereon);
(ii) to pay, in accordance with Section 3.06(b), or to reimburse the
Trust for the prior payment of, any expense relating to such Mortgage Loan
or any related REO Property that constitutes or, if not paid out of such
Loss of Value Payments, would constitute an Additional Trust Fund Expense;
(iii) to offset any Realized Loss (as calculated without regard to
the application of such Loss of Value Payments) incurred with respect to
such Mortgage Loan or any related successor REO Loan;
(iv) following the occurrence of a liquidation event with respect to
such Mortgage Loan or any related REO Property and any related transfers
from the Loss of Value Reserve Fund with respect to the items contemplated
by the immediately preceding clauses (i)-(iii) as to such Mortgage Loan,
to cover the items contemplated by the immediately preceding clauses
(i)-(iii) in respect of any other Mortgage Loan or REO Loan; and
(v) On the final Distribution Date after all distributions have been
made as set forth in clause (i) through (iv) above, to each Mortgage Loan
Seller, its pro rata share, based on the amount that it contributed, net
of any amount contributed by such Mortgage Loan Seller that was used
pursuant to clauses (i)-(iii) to offset any Realized Losses, Additional
Trust Fund Expenses or any Nonrecoverable Advances incurred with respect
to the Mortgage Loan related to such contribution.
Any Loss of Value Payments transferred to the Collection Account
pursuant to clauses (i)-(iii) of the prior paragraph shall, except for purposes
of Sections 3.12(c) and (d), be deemed to constitute Liquidation Proceeds
received by the Trust in respect of the related Mortgage Loan or any successor
REO Loan with respect thereto for which such Loss of Value Payments were
received; and any Loss of Value Payments transferred to the Collection Account
pursuant to clause (iv) of the prior paragraph shall, except for purposes of
Sections 3.12(c) and (d), be deemed to constitute Liquidation Proceeds received
by the Trust in respect of the Mortgage Loan or REO Loan for which such Loss of
Value Payments are being transferred to the Collection Account to cover an item
contemplated by clauses (i)-(iv) of the prior paragraph.
Section 3.07 Investment of Funds in the Collection Account , the
Serviced Whole Loan Collection Accounts, REO Account, the Lock-Box Accounts, the
Cash Collateral Accounts and the Reserve Accounts. (a) The Master Servicer (or
with respect to any REO Account, the Special Servicer) may direct any depository
institution maintaining its Collection Account, any Serviced Whole Loan
Collection Account, any Borrower Accounts (as defined below and subject to the
second succeeding sentence) and any REO Account (each, for purposes of this
Section 3.07, an "Investment Account"), to invest the funds in such Investment
Account in one or more Permitted Investments that bear interest or are sold at a
discount, and that mature, unless payable on demand, no later than the Business
Day preceding the date on which such funds are required to be withdrawn from
such Investment Account pursuant to this Agreement. Any investment of funds on
deposit in an Investment Account by the Master Servicer or the Special Servicer
shall be documented in writing and shall provide evidence that such investment
is a Permitted Investment which matures at or prior to the time required hereby
or is payable on demand. In the case of any Escrow Account, Lock-Box Account,
Cash Collateral Account or Reserve Account (the "Borrower Accounts"), the Master
Servicer shall act upon the written request of the related Borrower or Manager
to the extent that the Master Servicer is required to do so under the terms of
the respective Loan Documents, provided that in the absence of appropriate
written instructions from the related Borrower or Manager meeting the
requirements of this Section 3.07, the Master Servicer shall have no obligation
to, but will be entitled to, direct the investment of funds in such accounts in
Permitted Investments. 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) or in the name of a
nominee of the Trustee. The Trustee shall have sole control (except with respect
to investment direction which shall be in the control of the Master Servicer or
the Special Servicer, with respect to any REO Accounts, as an independent
contractor to the Trust Fund) over each such investment and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Trustee or its agent (which shall initially be the Master Servicer),
together with any document of transfer, if any, necessary to transfer title to
such investment to the Trustee or its nominee. The Trustee shall have no
responsibility or liability with respect to the investment directions of the
Master Servicer, the Special Servicer, any Borrower or Manager or any losses
resulting therefrom, whether from Permitted Investments or otherwise. The Master
Servicer shall have no responsibility or liability with respect to the
investment directions of the Special Servicer, any Borrower or Manager or any
losses resulting therefrom, whether from Permitted Investments or otherwise. In
the event amounts on deposit in an Investment Account are at any time invested
in a Permitted Investment payable on demand, the Master Servicer (or the Special
Servicer) shall:
(x) 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 (1) all amounts then payable thereunder and (2) the amount required to
be withdrawn on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer (or the Special Servicer) that such
Permitted Investment would not constitute a Permitted Investment in
respect of funds thereafter on deposit in the related Investment Account.
(b) All income and gain realized from investment of funds deposited
in any Investment Account shall be for the benefit of the Master Servicer
(except with respect to the investment of funds deposited in (i) any Borrower
Account, which shall be for the benefit of the related Borrower to the extent
required under the Mortgage Loan or applicable law or (ii) any REO Account,
which shall be for the benefit of the Special Servicer) and, if held in its
Collection Account, any Serviced Whole Loan Collection Account or REO Account
shall be subject to withdrawal by the Master Servicer or the Special Servicer,
as applicable, in accordance with Section 3.06 or Section 3.17(b), as
applicable. The Master Servicer, or with respect to any REO Account, the Special
Servicer, shall deposit from its own funds into its Collection Account, the
applicable Serviced Whole Loan Collection Account or any REO Account, as
applicable, the amount of any loss incurred in respect of any such Permitted
Investment immediately upon realization of such loss; provided, however, that
the Master Servicer or Special Servicer, as applicable, may reduce the amount of
such payment to the extent it forgoes any investment income in such Investment
Account otherwise payable to it. The Master Servicer shall also deposit from its
own funds in any Borrower Account immediately upon realization of such loss the
amount of any loss incurred in respect of Permitted Investments, except to the
extent that amounts are invested at the direction of or for the benefit of the
Borrower under the terms of the Mortgage Loan, Serviced Whole Loan or applicable
law. Amounts in the Distribution Account, Interest Reserve Account and the
Excess Liquidation Proceeds Account shall remain uninvested.
(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, the Trustee 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. In the
event the Trustee takes any such action, (i) the Master Servicer, if such
Permitted Investment was for the benefit of the Master Servicer, or (ii) the
Special Servicer, if such Permitted Investment was for the benefit of the
Special Servicer, shall pay or reimburse the Trustee for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by the
Trustee in connection therewith.
Section 3.08 Maintenance of Insurance Policies and Errors and
Omissions and Fidelity Coverage. (a) In the case of each Mortgage Loan or
Serviced Whole Loan, as applicable (but excluding any REO Loan) the Master
Servicer shall use reasonable efforts consistent with the Servicing Standard to
cause the related Borrower, with respect to the Mortgage Loans or Serviced Whole
Loans that it is servicing, to maintain (including identifying the extent to
which such Borrower is maintaining insurance coverage and, if such Borrower does
not so maintain, the Master Servicer will itself cause to be maintained with
Qualified Insurers) for the related Mortgaged Property (x) except where the Loan
Documents permit a Borrower to rely on self-insurance provided by a tenant, a
fire and casualty extended coverage insurance policy, which does not provide for
reduction due to depreciation, in an amount that is at least equal to the lesser
of (i) the full replacement cost of improvements securing such Mortgage Loan or
Serviced Whole Loan, as applicable, or (ii) the Stated Principal Balance of such
Mortgage Loan or Serviced Whole Loan, as applicable, but, in any event, in an
amount sufficient to avoid the application of any co-insurance clause and (y)
all other insurance coverage (including, but not limited to, coverage for acts
of terrorism) as is required, subject to applicable law, under the related Loan
Documents; provided, however, that:
(i) the Master Servicer shall not be required to maintain any
earthquake or environmental insurance policy on any Mortgaged Property
unless (x) such insurance policy was in effect at the time of the
origination of the related Mortgage Loan or Serviced Whole Loan, as
applicable, or (y) was required by the related Loan Documents and is
available at commercially reasonable rates (and if the Master Servicer
does not cause the Borrower to maintain or itself maintain such earthquake
or environmental insurance policy on any Mortgaged Property, the Special
Servicer shall have the right, but not the duty, to obtain (in accordance
with the Servicing Standard), at the Trust's expense, earthquake or
environmental insurance on any REO Property so long as such insurance is
available at commercially reasonable rates), provided that the Master
Servicer shall require the related Borrower to maintain such insurance in
the amount, in the case of clause (x), maintained at origination, and in
the case of clause (y), required by such Mortgage Loan or Serviced Whole
Loan, in each case, to the extent such amounts are available at
commercially reasonable rates;
(ii) if and to the extent that any Mortgage Loan Document grants the
lender thereunder any discretion (by way of consent, approval or
otherwise) as to the insurance provider from whom the related Borrower is
to obtain the requisite insurance coverage, the Master Servicer shall (to
the extent consistent with the Servicing Standard) require the related
Borrower to obtain the requisite insurance coverage from Qualified
Insurers;
(iii) the Master Servicer shall not have any obligation beyond using
its reasonable efforts consistent with the Servicing Standard to cause any
Borrower to maintain the insurance required to be maintained under the
Loan Documents; provided, however, that this clause shall not limit the
Master Servicer's obligation to obtain and maintain a force-placed
insurance policy, as provided herein;
(iv) except as provided below, (including under clause (vi) below),
in no event shall the Master Servicer be required to cause the Borrower to
maintain, or itself obtain, insurance coverage that the Master Servicer
has determined is either (A) not available at any rate or (B) not
available at commercially reasonable rates and the related 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 the
related Mortgaged Property is located (in each case, as determined by the
Master Servicer in accordance with the Servicing Standard, not less
frequently than annually, to the extent consistent with the Servicing
Standard (but need not be made more frequently) at the approximate date on
which the Master Servicer receives notice of the renewal, replacement or
cancellation of coverage, and the Master Servicer will be entitled to rely
on insurance consultants, retained at its own expense, in making such
determination);
(v) to the extent that a Master Servicer itself is required to
maintain insurance that the Borrower does not maintain, the Master
Servicer will not be required to maintain insurance other than what is
available to the Master Servicer on a force-placed basis at commercially
reasonable rates, and only to the extent the Trustee as lender has an
insurable interest thereon; and
(vi) any explicit terrorism insurance requirements contained in the
related Loan Documents shall be enforced by the Master Servicer in
accordance with the Servicing Standard, unless the Special Servicer and
the Directing Certificateholder have consented to a waiver (including a
waiver to permit the Master Servicer to accept insurance that does not
comply with specific requirements contained in the Loan Documents) in
writing of that provision in accordance with the Servicing Standard;
provided, however, that any determination by the Master Servicer that a
particular type of insurance is not available at commercially reasonable rates
shall be subject to the approval of the Special Servicer and the Directing
Certificateholder; provided, further, that the Master Servicer will not be
permitted to obtain insurance on a force-placed basis with respect to terrorism
insurance without the consent of the Special Servicer and the Directing
Certificateholder, subject however, to Section 3.29(b).
Notwithstanding the limitation set forth in clause (iv) above, the
Master Servicer must, prior to availing itself of any limitation described in
that clause with respect to any Mortgage Loan or Serviced Whole Loan, as
applicable, obtain the approval or disapproval of the Special Servicer and the
Directing Certificateholder (and, in connection therewith, the Special Servicer
will be required to comply with any applicable provisions of Sections 3.26 and
3.30, 3.31, 3.32 or 3.34, as applicable). The Master Servicer will be entitled
to rely on the determination of the Special Servicer made in connection with
such approval or disapproval. The Special Servicer shall decide with the consent
of the Directing Certificateholder whether to withhold or grant such approval in
accordance with the Servicing Standard. If any such approval has not been
expressly denied within 10 Business Days (or with respect to any Serviced Whole
Loan, such period of time as provided in Sections 3.31, 3.32 or 3.34, if any) of
the Special Servicer's and the Directing Certificateholder's receipt from the
Master Servicer of the Master Servicer's determination and analysis and all
information reasonably requested by the Special Servicer or the Directing
Certificateholder and reasonably available to the Master Servicer in order to
make an informed decision, such approval shall be deemed to have been granted.
The Master Servicer shall notify the Special Servicer, the Trustee
and the Directing Certificateholder if the Master Servicer determines in
accordance with the Servicing Standard that a Borrower has failed to maintain
insurance required under the Loan Documents and such failure materially and
adversely affects the interests of the Certificateholders or if the Borrower has
notified the Master Servicer in writing that the Borrower does not intend to
maintain such insurance and that the Master Servicer has determined in
accordance with the Servicing Standard that such failure materially and
adversely affects the interests of the Certificateholders.
Subject to Section 3.17(a), with respect to each REO Property, the
Special Servicer shall use reasonable efforts, consistent with the Servicing
Standard, to maintain (subject to the right of the Special Servicer to direct
the Master Servicer to make a Property Advance for the costs associated with
coverage that the Special Servicer determines to maintain, in which case the
Master Servicer shall make such Property Advance) with Qualified Insurers, (a) a
fire and casualty extended coverage insurance policy, which does not provide for
reduction due to depreciation, in an amount that is at least equal to the lesser
of the full replacement value of the Mortgaged Property or the Stated Principal
Balance of the Mortgage Loan or the Serviced Whole Loan, as applicable (or such
greater amount of coverage required by the related Loan Documents (unless such
amount is not available or the Directing Certificateholder has consented to a
lower amount)), but, in any event, in an amount sufficient to avoid the
application of any co-insurance clause, (b) a comprehensive general liability
insurance policy with coverage comparable to that which would be required under
prudent lending requirements and in an amount not less than $1.0 million per
occurrence, and (c) to the extent consistent with the Servicing Standard, a
business interruption or rental loss insurance covering revenues or rents for a
period of at least 12 months; provided, however, that the Special Servicer shall
not be required in any event to maintain or obtain insurance coverage described
in this paragraph beyond what is reasonably available at a cost customarily
acceptable and consistent with the Servicing Standard. With respect to each
Specially Serviced Loan (other than an REO Loan) the Special Servicer shall, in
accordance with the Servicing Standard, be responsible for pursuing any
enforcement action against the related Borrower with respect to such Borrower's
failure to maintain the insurance described in the first paragraph of this
Section 3.08(a); provided, that if such Borrower fails to maintain such
insurance, the Special Servicer may direct the Master Servicer to cause such
coverage to be maintained in accordance with and subject to the other provisions
of this Section 3.08, to the extent that the identified coverage is available
under the Master Servicer's existing force-placed policy.
All such insurance policies maintained as described above shall
contain (if they insure against loss to property) a "standard" mortgagee clause,
with loss payable to the Master Servicer (on behalf of the Trustee on behalf of
Certificateholders and, with respect to a Serviced Whole Loan the related
Serviced Companion Loan Noteholders), or shall name the Trustee as the insured,
with loss payable to the Special Servicer on behalf of the Trustee (on behalf of
Certificateholders and, with respect to a Serviced Whole Loan the related
Serviced Companion Loan Noteholders) (in the case of insurance maintained in
respect of an REO Property). Any amounts collected by the Master Servicer or
Special Servicer under any such 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 Borrower, in each case in accordance with
the Servicing Standard) shall be deposited in the Collection Account (or, in the
case of the Serviced Whole Loans, in the applicable Serviced Whole Loan
Collection Account), subject to withdrawal pursuant to Section 3.06, in the case
of amounts received in respect of a Mortgage Loan or Serviced Whole Loan, or in
the applicable REO Account of the Special Servicer, subject to withdrawal
pursuant to Section 3.17, in the case of amounts received in respect of an REO
Property. Any cost incurred by the Master Servicer or the Special Servicer in
maintaining any such insurance shall not, for purposes hereof, including
calculating monthly distributions to Certificateholders or Serviced Companion
Loan Noteholders, be added to the Stated Principal Balance of the related
Mortgage Loan or the Serviced Whole Loan, notwithstanding that the terms of such
Mortgage Loan or Serviced Whole Loan so permit; provided, however, that this
sentence shall not limit the rights of the Master Servicer or Special Servicer
on behalf of the Trust Fund to enforce any obligations of the related Borrower
under such Mortgage Loan or Serviced Whole Loan. Any costs incurred by the
Master Servicer in maintaining any such insurance policies in respect of the
Mortgage Loans or Specially Serviced Loans (other than REO Properties) (i) if
the Borrower defaults on its obligation to do so, shall be advanced by the
Master Servicer as a Property Advance and will be charged to the related
Borrower and (ii) shall not, for purposes of calculating monthly distributions
to Certificateholders, be added to the Stated Principal Balance of the related
Mortgage Loan, notwithstanding that the terms of such Mortgage 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 Fund
(and in the case of the Serviced Whole Loans, first, of the related Serviced B
Loan Noteholder, if any, and second, to the extent such cost remains unpaid, the
related Mortgage Loan) payable out of the related REO Account (or Serviced Whole
Loan REO Account, as applicable) or, if the amount on deposit therein is
insufficient therefore, advanced by the Master Servicer as a Property Advance.
(b) If either (x) the Master Servicer or Special Servicer obtains
and maintains, or causes to be obtained and maintained, a blanket policy or
master force-placed policy insuring against hazard losses on all of the Mortgage
Loans, Serviced Whole Loans or REO Properties, as applicable, as to which it is
the Master Servicer or Special Servicer, as the case may be, then, to the extent
such policy (i) is obtained from a Qualified Insurer, and (ii) provides
protection equivalent to the individual policies otherwise required or (y) the
Master Servicer or Special Servicer has long-term unsecured debt obligations
that are rated not lower than "A2" by Xxxxx'x and "A" by S&P (or, if applicable,
the comparable rating from Fitch, with respect to any class of Companion Loan
Securities that is rated by Fitch), and the Master Servicer or Special Servicer
self-insures for its obligation to maintain the individual policies otherwise
required, then the Master Servicer or the Special Servicer shall conclusively be
deemed to have satisfied its obligation to cause hazard insurance to be
maintained on the related Mortgaged Properties or REO Properties, as applicable.
Such a blanket or master force-placed policy may contain a deductible clause
(not in excess of a customary amount), in which case the Master Servicer or
Special Servicer, as the case may be, that maintains such policy shall, if there
shall not have been maintained on any Mortgaged Property or REO Property
thereunder a hazard insurance policy complying with the requirements of Section
3.08(a), and there shall have been one or more losses that would have been
covered by such an individual policy, promptly deposit into the Collection
Account (or, in the case of a Serviced Whole Loan, in the related Serviced Whole
Loan Collection Account), from its own funds, the amount not otherwise payable
under the blanket or master force-placed policy in connection with such loss or
losses because of such deductible clause to the extent that any such deductible
exceeds the deductible limitation that pertained to the related Mortgage Loan or
the related Serviced Whole Loan, as applicable (or, in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). The Master Servicer and Special
Servicer shall prepare and present, on behalf of itself, the Trustee,
Certificateholders and, if applicable the Serviced Companion Loan Noteholders,
claims under any such blanket or master force-placed policy maintained by it in
a timely fashion in accordance with the terms of such policy. If the Master
Servicer or Special Servicer, as applicable, causes any Mortgaged Property or
REO Property to be covered by such "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 as a Property Advance.
(c) With respect to each Mortgage Loan or Serviced Whole Loan, as
applicable, that is subject to an Environmental Insurance Policy, if the Master
Servicer has actual knowledge of any event giving rise to a claim under an
Environmental Insurance Policy, the Master Servicer shall notify the Special
Servicer to such effect and the Master Servicer shall take reasonable actions as
are in accordance with the Servicing Standard and the terms and conditions of
such Environmental Insurance Policy to make a claim thereunder and achieve the
payment of all amounts to which the Trust is entitled thereunder. With respect
to each Specially Serviced Loan and REO Property that is subject to an
Environmental Insurance Policy, if the Special Servicer has actual knowledge of
any event giving rise to a claim under an Environmental Insurance Policy, such
Special Servicer shall take reasonable actions as are in accordance with the
Servicing Standard and the terms and conditions of such Environmental Insurance
Policy to make a claim thereunder and achieve the payment of all amounts to
which the Trust, on behalf of the Certificateholders and, if applicable, the
Serviced Companion Loan Noteholders (giving due regard to the junior nature of
the related B Loan, if any), is entitled thereunder. Any legal fees or other
out-of-pocket costs incurred in accordance with the Servicing Standard in
connection with any claim under an Environmental Insurance Policy described
above (whether by the Master Servicer or Special Servicer) shall be a Property
Advance.
(d) The Master Servicer and Special Servicer shall at all times
during the term of this Agreement (or, in the case of the Special Servicer, at
all times during the term of this Agreement during which Specially Serviced
Loans and/or REO Properties as to which it is the Special Servicer exist as part
of the Trust Fund) keep in force with a Qualified Insurer, a fidelity bond in
such form and amount as are consistent with the Servicing Standard. The Master
Servicer or Special Servicer shall be deemed to have complied with the foregoing
provision if an Affiliate thereof has such fidelity bond coverage and, by the
terms of such fidelity bond, the coverage afforded thereunder extends to the
Master Servicer or Special Servicer, as the case may be. Such fidelity bond
shall provide that it may not be canceled without ten days' prior written notice
to the Trustee. So long as the long-term unsecured debt obligations of the
Master Servicer (or its corporate parent if such insurance is guaranteed by its
parent) or the Special Servicer, as applicable, are rated not lower than "A2" by
Xxxxx'x and "A" by S&P (and, if it rates Companion Loan Securities, Fitch) (or,
if applicable, the comparable rating from Fitch, with respect to any class of
Companion Loan Securities that is rated by Fitch), the Master Servicer or the
Special Servicer, as applicable, may self-insure with respect to the fidelity
bond coverage required as described above, in which case it shall not be
required to maintain an insurance policy with respect to such coverage.
The Master Servicer and Special Servicer shall at all times during
the term of this Agreement (or, in the case of the Special Servicer, at all
times during the term of this Agreement during which Specially Serviced Loans
and/or REO Properties exist as part of the Trust Fund) also keep in force with a
Qualified Insurer a policy or policies of insurance covering loss occasioned by
the errors and omissions of its officers and employees in connection with their
servicing obligations hereunder, which policy or policies shall be in such form
and amount as are consistent with the Servicing Standard. The Master Servicer or
Special Servicer shall be deemed to have complied with the foregoing provisions
if an Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide that it may not be canceled without ten days' prior written notice to
the Trustee. So long as the long-term unsecured debt obligations of the Master
Servicer (or its corporate parent if such insurance is guaranteed by its parent)
or the Special Servicer, as applicable, are rated not lower than "A" by S&P
(and, if it rates Companion Loan Securities, Fitch) and "A2" by Xxxxx'x (or, if
applicable, the comparable rating from Fitch, with respect to any class of
Companion Loan Securities that is rated by Fitch), the Master Servicer or the
Special Servicer, as applicable, may self-insure with respect to the errors and
omissions coverage required as described above, in which case it shall not be
required to maintain an insurance policy with respect to such coverage.
Section 3.09 Enforcement of Due-On-Sale Clauses; Assumption
Agreements; Defeasance Provisions. (a) If any Mortgage Loan or Serviced Whole
Loan contains a provision in the nature of a "due-on-sale" clause (including,
without limitation, sales or transfers of Mortgaged Properties (in full or part)
or the sale, transfer, pledge or hypothecation of direct or indirect interests
in the Borrower or its owners), which by its terms:
(i) provides that such Mortgage Loan or Serviced Whole Loan will (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
(including, without limitation, the sale, transfer, pledge or
hypothecation of direct or indirect interests in the Borrower or its
owners),
(ii) provides that such Mortgage Loan or Serviced Whole Loan may not
be assumed without the consent of the related mortgagee in connection with
any such sale or other transfer, or
(iii) provides that such Mortgage Loan or Serviced Whole Loan may be
assumed or transferred without the consent of the mortgagee, provided
certain conditions set forth in the Loan Documents are satisfied,
then, for so long as such Mortgage Loan is included in the Trust Fund, subject
to the rights of the Directing Certificateholder, the Master Servicer (with
respect to each Mortgage Loan that is a Performing Loan and any related
Companion Loans) or the Special Servicer (with respect to any Specially Serviced
Loan and any related Companion Loan), as applicable, on behalf of the Trust Fund
shall not be required to enforce any such due-on-sale clauses and in connection
therewith shall not be required to (x) accelerate payments thereon or (y)
withhold its consent to such an assumption if (1) such provision is not
exercisable under applicable law or the enforcement of such provision is
reasonably likely to result in meritorious legal action by the Borrower or (2)
the Master Servicer or the Special Servicer, as applicable, determines, in
accordance with the Servicing Standard, that granting such consent would be
likely to result in a greater recovery, on a present value basis (discounting at
the related Mortgage Rate), than would enforcement of such clause. If the Master
Servicer or the Special Servicer, as applicable, determines that (A) granting
such consent would be likely to result in a greater recovery, (B) such provision
is not legally enforceable, or (C) that the conditions described in clause (iii)
above relating to the assumption or transfer of Mortgage Loan or Serviced Whole
Loan have been satisfied, the Master Servicer or the Special Servicer, as
applicable, is authorized to consent to, and coordinate the consummation of, an
assumption of the related Mortgage Loan or Serviced Whole Loan or other
appropriate transaction by the proposed transferee from the related Borrower or
its owners, provided, that (a) the credit status of the prospective new Borrower
is in compliance with the Master Servicer's or Special Servicer's, as
applicable, Servicing Standard and (b) the Master Servicer or the Special
Servicer, as applicable, has received written confirmation that such assumption
or substitution would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then-current ratings assigned to the Certificates or any
affected Companion Loan Securities from (i) S&P with respect to any Mortgage
Loan (together with any Mortgage Loans cross-collateralized with such Mortgage
Loan) that (A) represents more than 5% of the then-current aggregate Stated
Principal Balance of the Mortgage Loans (taking into account for the purposes of
this calculation, in the case of any such Mortgage Loan with respect to which
the related Borrower or its Affiliate is a Borrower with respect to one or more
other Mortgage Loans, such other Mortgage Loans), (B) has a Stated Principal
Balance that is more than $35,000,000 or (C) is among the ten largest Mortgage
Loans in the Trust Fund (based on Stated Principal Balance), or (ii) Xxxxx'x
(and, if it rates any affected Companion Loan Securities, Fitch) with respect to
any Mortgage Loan (together with any Mortgage Loans cross-collateralized with
such Mortgage Loan) that represents one of the ten largest Mortgage Loans in the
Trust Fund (based on Stated Principal Balance). In connection with each such
assumption or substitution entered into by the Special Servicer, the Special
Servicer shall give prior notice thereof to the Master Servicer. The Master
Servicer or the Special Servicer, as applicable, shall notify the Trustee and
the Directing Certificateholder that any such assumption or substitution
agreement has been completed by forwarding to the Custodian (with a copy to the
Master Servicer, if applicable, and the Directing Certificateholder) the
original copy of such agreement, which copies shall be added to the related
Mortgage File and shall, for all purposes, be considered a part of such Mortgage
File to the same extent as all other documents and instruments constituting a
part thereof. To the extent not precluded by the Mortgage Loan documents, the
Master Servicer or the Special Servicer shall not approve an assumption or
substitution without requiring the related Borrower to pay any fees owed to the
Rating Agencies associated with the approval of such assumption or substitution.
However, in the event that the related Borrower is required but fails to pay
such fees or the related Borrower is not required to pay such fees and the
Master Servicer has attempted to collect such fees but fails to collect such
fees, such fees shall be an expense of the Trust Fund and, in the case of any
Serviced Whole Loan, such expense shall be allocated in accordance with the
related Co-Lender Agreement or, in absence of such allocation, (i) first to the
related Serviced B Loan (up to the full Stated Principal Balance thereof), if
any, and, then, (ii) to the holders of the related Mortgage Loan (or in the case
of a Serviced Whole Loan with a Pari Passu Companion Loan, to the holders
related Mortgage Loan and Pari Passu Companion Loan on a pro rata basis in
accordance with their outstanding principal balances).
Notwithstanding anything in the foregoing paragraph to the contrary, (i)
the Master Servicer shall promptly forward any request for an assumption of any
Mortgage Loan or Serviced Whole Loan to the Special Servicer for approval and
also forward to the Special Servicer its written recommendation, analysis and
any other information or documents reasonably requested by the Special Servicer
(to the extent such information or documents are in the Master Servicer's
possession); provided, that the Special Servicer shall obtain the consent of the
Directing Certificateholder to any such assumption or substitution of any
Mortgage Loan, Serviced Whole Loan or Specially Serviced Loan, to the extent
described in Sections 3.30, 3.31, 3.32 or 3.34 hereof, as applicable.
(b) If any Mortgage Loan or Serviced Whole Loan contains a provision
in the nature of a "due-on-encumbrance" clause (including, without limitation,
any mezzanine financing of the Borrower or the Mortgaged Property or any sale or
transfer of preferred equity in the Borrower or its owners), which by its terms:
(i) provides that such Mortgage Loan or Serviced Whole Loan shall
(or may at the mortgagee's option) become due and payable upon the
creation of any lien or other encumbrance on the related Mortgaged
Property (including, without limitation, any mezzanine financing of the
Borrower or the Mortgaged Property or any sale or transfer of preferred
equity in the Borrower or its owners),
(ii) requires the consent of the related mortgagee to the creation
of any such lien or other encumbrance on the related Mortgaged Property
(including, without limitation, any mezzanine financing of the Borrower or
the Mortgaged Property or any sale or transfer of preferred equity in the
Borrower or its owners), or
(iii) provides that such Mortgaged Property may be further
encumbered without the consent of the mortgagee (including, without
limitation, any mezzanine financing of the Borrower or the Mortgaged
Property or any sale or transfer of preferred equity in the Borrower or
its owners), provided certain conditions set forth in the Loan Documents
are satisfied,
then the Master Servicer (with respect to each Mortgage Loan that is a
Performing Loan and any related Companion Loan) or Special Servicer (with
respect to any Specially Serviced Loans and any related Companion Loan), as
applicable, on behalf of the Trust Fund shall not be required to enforce such
due-on-encumbrance clauses and in connection therewith, will not be required to
(i) accelerate the payments on the related Mortgage Loan or Serviced Whole Loan
or (ii) withhold its consent to such lien or encumbrance, if the Master Servicer
or the Special Servicer, as applicable, (x) determines, in accordance with the
Servicing Standard that such enforcement would not be in the best interests of
the Trust Fund or the holder of the related Serviced Companion Loan, if
applicable (giving due regard to the junior nature of the related B Loan, if
any), or that in the case of a Mortgage Loan or Serviced Whole Loan described in
clause (b)(iii) above that the conditions to further encumbrance have been
satisfied and (y) as to any Mortgage Loan or Serviced Whole Loan, receives prior
written confirmation from S&P and Xxxxx'x (or, if applicable, Fitch if it is
rating any affected Companion Loan Securities) that granting such consent would
not, in and of itself, cause a downgrade, qualification or withdrawal of any of
the then-current ratings assigned to the Certificates or affected Companion Loan
Securities, if applicable; provided, that in the case of S&P, such confirmation
shall only be required with respect to any Mortgage Loan (together with any
Mortgage Loans cross-collateralized with such Mortgage Loan) that (1) represents
2% or more of the Stated Principal Balance of all of the Mortgage Loans held by
the Trust Fund (or 5% if the aggregate Stated Principal Balance of all of the
Mortgage Loans held by the Trust Fund is less than $100 million), (2) has a
Stated Principal Balance greater than $20 million, (3) is one of the ten largest
Mortgage Loans based on Stated Principal Balance, (4) has a loan-to-value ratio
(which includes additional debt of the related Borrower and any related
mezzanine debt, if any) that is greater than or equal to 85% or (5) has a Debt
Service Coverage Ratio (which includes additional debt of the related Borrower
and any related mezzanine debt, if any) that is less than 1.20x or, in the case
of Xxxxx'x, such confirmation shall only be required with respect to any
Mortgage Loan which (together with any Mortgage Loans cross-collateralized with
such Mortgage Loans) represents one of the ten largest Mortgage Loans in the
Trust Fund (based on Stated Principal Balance). To the extent not precluded by
the Mortgage Loan documents, the Master Servicer or the Special Servicer, as
applicable, shall not approve an assumption or substitution without requiring
the related Borrower to pay any fees owed to the Rating Agencies associated with
the approval of such lien or encumbrance. However, in the event that the related
Borrower is required but fails to pay such fees, such fees shall be an expense
of the Trust Fund and, in the case of any Serviced Whole Loan, such expense
shall be allocated (i) first to the related Serviced B Loan (up to the full
Stated Principal Balance thereof), if any, and, then, (ii) to the holders of the
related Mortgage Loan.
Notwithstanding anything in the foregoing paragraph to the contrary, (i)
the Master Servicer shall promptly forward any request for the further
encumbrance of any Mortgage Loan or Serviced Whole Loan to the Special Servicer
for approval; provided, that the Special Servicer shall obtain the consent of
the Directing Certificateholder to any such waiver of a due-on-encumbrance
clause, to the extent described in Sections 3.30, 3.31, 3.32 or 3.34 hereof, as
applicable.
(c) If the Directing Certificateholder objects in writing to the
Master Servicer's or Special Servicer's, as applicable, determination that such
conditions have been satisfied, then the Master Servicer or Special Servicer, as
applicable, shall not permit transfer, assumption or further encumbrance of such
Mortgage Loan or Serviced Whole Loan.
(d) Nothing in this Section 3.09 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 lien or other encumbrance with respect to such Mortgaged
Property.
(e) In connection with the taking of, or the failure to take, any
action pursuant to this Section 3.09, neither the Master Servicer nor the
Special Servicer shall agree to modify, waive or amend, and no assumption or
substitution agreement entered into pursuant to Section 3.09(a) shall contain
any terms that are different from, any term of any Mortgage Loan or Serviced
Whole Loan or the related Note, other than pursuant to Section 3.30, 3.31, 3.32
or 3.34 hereof, as applicable.
(f) With respect to any Mortgage Loan or Serviced Whole Loan which
permits release of Mortgaged Properties through defeasance and subject to
Section 3.30(m):
(i) If such Mortgage Loan or Serviced Whole Loan requires that the
Master Servicer (on behalf of the Trustee) purchase the required
government securities, then the Master Servicer shall purchase such
obligations, at the related Borrower's expense, in accordance with the
terms of such Mortgage Loan; provided, that the Master Servicer shall not
accept the amounts paid by the related Borrower to effect defeasance until
acceptable government securities have been identified.
(ii) To the extent not inconsistent with such Mortgage Loan or
Serviced Whole Loan, the Master Servicer shall require the related
Borrower to provide an Opinion of Counsel (which shall be an expense of
the related Borrower) to the effect that the Trustee has a first priority
perfected security interest in the defeasance collateral (including the
government securities) and the assignment of the defeasance collateral is
valid and enforceable; such opinion, together with any other certificates
or documents to be required in connection with such defeasance shall be in
form and substance acceptable to each Rating Agency.
(iii) To the extent not inconsistent with such Mortgage Loan or
Serviced Whole Loan, the Master Servicer shall require a certificate at
the related Borrower's expense from an Independent certified public
accountant certifying to the effect that the government securities will
provide cash flows sufficient to meet all payments of interest and
principal (including payments at maturity) on such Mortgage Loan or
Serviced Whole Loan in compliance with the requirements of the terms of
the related Loan Documents.
(iv) Prior to permitting the release of any Mortgaged Properties
and, if applicable, assumption of the Mortgage Loan or Serviced Whole Loan
by a successor borrower, to the extent not inconsistent with the related
Mortgage Loan or Serviced Whole Loan, the Master Servicer shall obtain, at
the related Borrower's expense, written confirmation from each Rating
Agency that such release and assumption, if applicable, would not, in and
of itself, result in a downgrade, qualification or withdrawal of the
then-current ratings assigned to the Certificates or the Companion Loan
Securities, as applicable; provided, however, that (A) the Master Servicer
shall not be required to obtain such written confirmation from Xxxxx'x
unless such Mortgage Loan (together with any Mortgage Loans
cross-collateralized with such Mortgage Loan) at the time of such
defeasance is (x) one of the ten largest Mortgage Loans by Stated
Principal Balance, (y) a Mortgage Loan with a Stated Principal Balance
greater than $20,000,000 or (z) a Mortgage Loan that represents 5% or more
of the Stated Principal Balance of all Mortgage Loans and (B) the Master
Servicer shall not be required to obtain such written confirmation from
S&P with respect to any Mortgage Loan that has a Stated Principal Balance
that is equal to or less than $20,000,000 or 5% of the aggregate Stated
Principal Balance of all of the Mortgage Loans (whichever is less), so
long as such Mortgage Loan is not one of the ten largest Mortgage Loans by
Stated Principal Balance, if the Master Servicer delivers to the Trustee
and S&P a letter or a certificate in the form of Exhibit T attached
hereto.
(v) Prior to permitting release of any Mortgaged Property, if the
related Mortgage Loan so requires or permits, and provides for the related
Borrower to pay the cost thereof, the Master Servicer shall require an
Opinion of Counsel of the related Borrower to the effect that such release
will not cause either Trust REMIC to fail to qualify as a REMIC at any
time that any Certificates are outstanding, cause a tax to be imposed on
the Trust Fund under the REMIC Provisions 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.
(vi) No defeasance shall occur prior to the second anniversary of
the Startup Day of the Trust REMICs.
(vii) The Trustee shall at the expense of the related Borrower (to
the extent permitted by the related Loan Documents) hold the U.S.
government obligations as pledgee for the benefit of the
Certificateholders and, if applicable, the Serviced Companion Loan
Noteholders, and apply payments of principal and interest received on the
government obligations to the Collection Account in respect of the
defeased Mortgage Loan according to the payment schedule existing
immediately prior to the defeasance.
(viii) The Master Servicer shall, in accordance with the Servicing
Standard, enforce provisions in the Mortgage Loans that it is servicing
requiring Borrowers to pay all reasonable expenses associated with a
defeasance.
(ix) To the extent not inconsistent with such Mortgage Loan, or to
the extent the related Loan Documents provide the lender with discretion,
the Master Servicer shall require the Borrower to establish a single
purpose entity to act as a successor borrower.
Section 3.10 Appraisals; Realization Upon Defaulted Mortgage Loans.
(a) Contemporaneously with the earliest of (i) the effective date of any (A)
modification of the Maturity Date, a Mortgage Rate, principal balance or
amortization terms of any Mortgage Loan or Serviced Whole Loan or any other term
of a Mortgage Loan or Serviced Whole Loan, (B) extension of the Maturity Date of
a Mortgage Loan or Serviced Whole Loan as described below in Section 3.30, 3.31,
3.32 or 3.34, as applicable, or (C) consent to the release of any Mortgaged
Property from the lien of the related Mortgage other than pursuant to the terms
of the related Mortgage Loan or Serviced Whole Loan, (ii) the occurrence of an
Appraisal Reduction Event, (iii) a default in the payment of a Balloon Payment
for which an extension is not granted pursuant to Section 3.26(g), or (iv) the
date on which the Special Servicer, consistent with the Servicing Standard,
requests an Updated Valuation, the Special Servicer shall obtain an Updated
Valuation or Small Loan Appraisal Estimate (or a letter update for an existing
appraisal which is less than two years old) for any Mortgaged Property (other
than the Mortgaged Property related to the ShopKo Portfolio Mortgage Loan), the
cost of which shall constitute a Property Advance; provided, however, that the
Special Servicer shall not be required to obtain an Updated Valuation pursuant
to clauses (i) through (iv) above with respect to any Mortgaged Property for
which there exists an Appraisal or Small Loan Appraisal Estimate which is less
than twelve months old unless the Special Servicer has actual knowledge of a
material adverse change in circumstances that, consistent with the Servicing
Standard, would call into question the validity of such Appraisal or Small Loan
Appraisal Estimate. For so long as such Mortgage Loan or Serviced Whole Loan is
a Specially Serviced Loan, the Special Servicer shall obtain letter updates to
each Updated Valuation annually and prior to the Special Servicer granting
extensions beyond one year or any subsequent extension after granting a one year
extension with respect to the same Mortgage Loan or Serviced Whole Loan. The
Special Servicer will be required to update, on an annual basis, each Small Loan
Appraisal Estimate or Updated Appraisal for so long as the related Mortgage Loan
or Serviced Whole Loan remains a Specially Serviced Loan. The Special Servicer
shall send all such letter updates and Updated Valuations to the Master
Servicer, the Rating Agencies, the Controlling Class Representative, any related
Serviced Companion Loan Noteholders and the Directing Certificateholder.
The Special Servicer shall monitor each Specially Serviced Loan,
evaluate whether the causes of the default can be corrected over a reasonable
period without significant impairment of the value of the related Mortgaged
Property, initiate corrective action in cooperation with the Borrower if, in the
Special Servicer's judgment, cure is likely, and take such other actions
(including without limitation, negotiating and accepting a discounted payoff of
a Mortgage Loan or Serviced Whole Loan) as are consistent with the Servicing
Standard. If, in the Special Servicer's judgment, such corrective action has
been unsuccessful, no satisfactory arrangement can be made for collection of
delinquent payments, and the Specially Serviced Loan has not been released from
the Trust Fund pursuant to any provision hereof, and except as otherwise
specifically provided in Sections 3.09(a) and 3.09(b), the Special Servicer may,
to the extent consistent with the Asset Status Report (and with the consent of
the Directing Certificateholder) and with the Servicing Standard, accelerate
such Specially Serviced Loan and commence a foreclosure or other acquisition
with respect to the related Mortgaged Property or Properties, provided, that the
Special Servicer determines that such acceleration and foreclosure are more
likely to produce a greater recovery to Certificateholders and, if applicable,
Serviced Companion Loan Noteholders (as a collective whole) on a present value
basis (discounting at the related Mortgage Rate) than would a waiver of such
default or an extension or modification in accordance with the provisions of
Section 3.30, 3.31, 3.32 or 3.34 hereof, as applicable. The Master Servicer or
the Special Servicer may, pay the costs and expenses in any such proceedings as
a Property Advance unless the Master Servicer or Special Servicer, as
applicable, determines, in its good faith judgment, that such Property Advance
would constitute a Nonrecoverable Advance. The Trustee shall be entitled to
conclusively rely upon any determination of the Master Servicer that a Property
Advance, if made, would constitute a Nonrecoverable Advance. If the Master
Servicer does not make such Property Advance in violation of the second
preceding sentence, the Trustee shall make such Property Advance, unless the
Trustee determines that such Property Advance would be a Nonrecoverable Advance.
The Master Servicer and the Trustee, as applicable, shall be entitled to
reimbursement of Property Advances (with interest at the Advance Rate) made
pursuant to this paragraph to the extent permitted by Section 3.06.
(b) If the Special Servicer elects to proceed with a non-judicial
foreclosure in accordance with the laws of the state where the Mortgaged
Property is located, the Special Servicer shall not be required to pursue a
deficiency judgment against the related Borrower or any other liable party if
the laws of the state do not permit such a deficiency judgment after a
non-judicial foreclosure or if the Special Servicer determines, in its best
judgment, that the likely recovery if a deficiency judgment is obtained will not
be sufficient to warrant the cost, time, expense and/or exposure of pursuing the
deficiency judgment and such determination is evidenced by an Officer's
Certificate delivered to the Trustee.
(c) In the event that title to any Mortgaged Property (other than
Mortgaged Property related to the ShopKo Portfolio Mortgage Loan) is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee (which shall not include the
Special Servicer) or a separate Trustee or co-Trustee on behalf of the Trustee
as Holder of the Lower-Tier Regular Interests and the Certificateholders and, if
applicable, the Serviced Companion Loan Noteholders. Notwithstanding any such
acquisition of title and cancellation of the related Mortgage Loan or Serviced
Whole Loan, as applicable, such Mortgage Loan or Serviced Whole Loan, as
applicable, shall (except for purposes of Section 9.01) be considered to be an
REO Loan until such time as the related REO Property shall be sold by the Trust
Fund and shall be reduced only by collections net of expenses. Consistent with
the foregoing, for purposes of all calculations hereunder, so long as such
Mortgage Loan or Serviced Companion Loan, as applicable, shall be considered to
be an outstanding Mortgage Loan or Serviced Companion Loan, as applicable:
(i) it shall be assumed that, notwithstanding that the indebtedness
evidenced by the related Note shall have been discharged, such Note and,
for purposes of determining the Stated Principal Balance thereof, the
related amortization schedule in effect at the time of any such
acquisition of title shall remain in effect; and
(ii) subject to Section 1.02(g), Net REO Proceeds received in any
month shall be applied to amounts that would have been payable under the
related Note(s) in accordance with the terms of such Note(s) and any
applicable Co-Lender Agreement. In the absence of such terms, Net REO
Proceeds shall, subject to Section 1.02(g), be deemed to have been
received first, in payment of the accrued interest that remained unpaid on
the date that the related REO Property was acquired by the Trust Fund;
second, in respect of the delinquent principal installments that remained
unpaid on such date; and thereafter, Net REO Proceeds received in any
month shall be applied to the payment of installments of principal and
accrued interest on such Mortgage Loan or Serviced Companion Loan, as
applicable, deemed to be due and payable in accordance with the terms of
such Note(s) and such amortization schedule until such principal has been
paid in full and then to other amounts due under such Mortgage Loan or
Serviced Companion Loan, as applicable. If such Net REO Proceeds exceed
the Monthly Payment then payable, the excess shall be treated as a
Principal Prepayment received in respect of such Mortgage Loan or Serviced
Companion Loan, as applicable.
(d) Notwithstanding any provision herein to the contrary, the
Special Servicer shall not acquire for the benefit of the Trust Fund any
personal property pursuant to this Section 3.10 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(l) of the Code) so acquired by the Special
Servicer for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an
Opinion of Counsel (which opinion shall be an expense of the Lower-Tier
REMIC) to the effect that the holding of such personal property by the
Lower-Tier REMIC will not cause the imposition of a tax on either Trust
REMIC under the REMIC Provisions or cause either Trust REMIC to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(e) Notwithstanding any provision to the contrary in this Agreement,
the Special Servicer shall not, on behalf of the Trust Fund, obtain title to any
direct or indirect partnership interest or other equity interest in any Borrower
pledged pursuant to any pledge agreement unless the Special Servicer shall have
requested and received an Opinion of Counsel (which opinion shall be an expense
of the Trust Fund; provided that with respect to the Serviced Whole Loan, such
expenses shall be allocated first to the related Serviced B Loan, if any, and
second, to the extent such expense remains unpaid, to the related Mortgage Loan
(or in the case of a Serviced Whole Loan with a Pari Passu Companion Loan, to
the related Mortgage Loan and Pari Passu Companion Loan on a pro rata basis in
accordance with their outstanding principal balances)) to the effect that the
holding of such partnership interest or other equity interest by the Trust Fund
will not cause the imposition of a tax on either Trust REMIC under the REMIC
Provisions or cause either Trust REMIC to fail to qualify as a REMIC at any time
that any Certificate is outstanding.
(f) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership interest in any
Borrower pledged pursuant to a pledge agreement and thereby be the beneficial
owner of a Mortgaged Property, have a receiver of rents appointed with respect
to, and shall not otherwise acquire possession of, or take any other action with
respect to, any Mortgaged Property if, as a result of any such action, the
Trustee, for the Trust Fund, the Certificateholders or Serviced Companion Loan
Noteholders, if applicable, 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 the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Special Servicer has previously determined in
accordance with the Servicing Standard, based on an updated environmental
assessment report prepared by an Independent Person who regularly conducts
environmental audits, that:
(i) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, after consultation with an environmental
consultant, that it would be in the best economic interest of the Trust
Fund (and with respect to the Serviced Whole Loans, the Serviced Companion
Loan Noteholders), as a collective whole, to take such actions as are
necessary to bring such Mortgaged Property in compliance therewith, and
(ii) there are no circumstances present at such Mortgaged Property
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any currently effective federal, state
or local law or regulation, or that, if any such Hazardous Materials are
present for which such action could be required, after consultation with
an environmental consultant, it would be in the best economic interest of
the Trust Fund to take such actions with respect to the affected Mortgaged
Property.
In the event that the environmental assessment first obtained by the
Special Servicer with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable environmental laws
or that Hazardous Materials may be present but does not definitively establish
such fact, the Special Servicer shall cause such further environmental tests to
be conducted by an Independent Person who regularly conducts such tests as the
Special Servicer shall deem prudent to protect the interests of
Certificateholders and, if applicable, the Serviced Companion Loan Noteholders.
Any such tests shall be deemed part of the environmental assessment obtained by
the Special Servicer for purposes of this Section 3.10.
(g) The environmental assessment contemplated by Section 3.10(g)
shall be prepared within three months (or as soon thereafter as practicable) of
the determination that such assessment is required by any Independent Person who
regularly conducts environmental audits for purchasers of commercial property
where the Mortgaged Property is located, as determined by the Special Servicer
in a manner consistent with the Servicing Standard. Upon the written direction
of the Special Servicer and delivery by the Special Servicer to the Master
Servicer of pertinent back-up information the Master Servicer shall advance the
cost of preparation of such environmental assessments as a Property Advance
unless the Master Servicer determines, in its good faith judgment, that such
Property Advance would be a Nonrecoverable Advance. The Master Servicer shall be
entitled to reimbursement of Property Advances (with interest at the Advance
Rate) made pursuant to the preceding sentence to the extent permitted by Section
3.06.
(h) If the Special Servicer determines pursuant to Section
3.10(f)(i) that a Mortgaged Property is not in compliance with applicable
environmental laws but that it is in the best economic interest of the Trust
Fund (and with respect to the Serviced Whole Loans, the Serviced Companion Loan
Noteholders), as a collective whole, to take such actions as are necessary to
bring such Mortgaged Property in compliance therewith, or if the Special
Servicer determines pursuant to Section 3.10(f)(ii) that the circumstances
referred to therein relating to Hazardous Materials are present but that it is
in the best economic interest of the Trust Fund (and with respect to any
Serviced Whole Loan, the related Serviced Companion Loan Noteholders), as a
collective whole, to take such action with respect to the containment, clean-up
or remediation of Hazardous Materials affecting such Mortgaged Property as is
required by law or regulation, the Special Servicer shall take such action as it
deems to be in the best economic interest of the Trust Fund (and with respect to
any Serviced Whole Loan, the related Serviced Companion Loan Noteholders), but
only if the Trustee has mailed notice to the Holders of the Regular Certificates
and the related Serviced Companion Loan Noteholders of such proposed action,
which notice shall be prepared by the Special Servicer, and only if the Trustee
does not receive, within 30 days of such notification, instructions from the
Holders of Regular Certificates entitled to a majority of the Voting Rights and,
with respect to Serviced Whole Loans, the applicable Serviced Companion Loan
Noteholders directing the Special Servicer not to take such action.
Notwithstanding the foregoing, if the Special Servicer reasonably determines
that it is likely that within such 30-day period irreparable environmental harm
to such Mortgaged Property would result from the presence of such Hazardous
Materials and provides a prior written statement to the Trustee setting forth
the basis for such determination, then the Special Servicer may take such action
to remedy such condition as may be consistent with the Servicing Standard. None
of the Trustee, the Master Servicer or the Special Servicer shall be obligated
to take any action or not take any action pursuant to this Section 3.10(i) at
the direction of the Certificateholders or with respect to any Serviced Whole
Loan, at the direction of the Certificateholders and the related Serviced
Companion Loan Noteholders unless the Certificateholders and, with respect to
any Serviced Companion Loan, the Serviced Companion Loan Noteholders agree to
indemnify the Trustee, the Master Servicer and the Special Servicer with respect
to such action or inaction. The Master Servicer or the Special Servicer may,
advance the cost of any such compliance, containment, clean-up or remediation as
a Property Advance unless the Master Servicer or the Special Servicer, as
applicable, determines, in its good faith judgment, that such Advance would
constitute a Nonrecoverable Advance. If the Special Servicer shall make such
Property Advance, the Master Servicer shall reimburse the Special Servicer for
such Property Advance within 2 Business Days.
(i) The Special Servicer shall notify the Master Servicer of any
Mortgaged Property which is abandoned or foreclosed that requires reporting to
the IRS and shall provide the Master Servicer with all information regarding
forgiveness of indebtedness and required to be reported with respect to any
Mortgage Loan or Serviced Whole Loan which is abandoned or foreclosed and the
Master Servicer shall report to the IRS and the related Borrower, in the manner
required by applicable law, such information and the Master Servicer shall
report, via Form 1099C, all forgiveness of indebtedness to the extent such
information has been provided to the Master Servicer by the Special Servicer.
The Master Servicer shall deliver a copy of any such report to the Trustee.
(j) The costs of any Updated Valuation obtained pursuant to this
Section 3.10 shall be a Property Advance and shall be reimbursable from the
Collection Accounts or, with respect to the Serviced Whole Loans, first, from
the applicable Serviced Whole Loan Collection Account and second, to the extent
amounts in the Serviced Whole Loan Collection Account are insufficient
therefore, from the Collection Accounts in accordance with Section 3.06(b).
Section 3.11 Trustee to Cooperate; Release of Mortgage Files. Upon
the payment in full of any Mortgage Loan or Serviced Whole Loan, or the receipt
by the Master Servicer of a notification that payment in full has been escrowed
in a manner customary for such purposes, the Master Servicer shall immediately
notify the Trustee or the Custodian by a certification (which certification
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 Collection Account or the applicable Serviced Whole Loan Collection Account,
as applicable, pursuant to Section 3.05 have been or will be so deposited) of a
Servicing Officer and shall request delivery to it of the related Mortgage File.
Any expense incurred in connection with any instrument of satisfaction or deed
of reconveyance that is not paid by the related Borrower shall be chargeable to
the Trust Fund. The Master Servicer agrees to use reasonable efforts in
accordance with the Servicing Standard to enforce any provision in the relevant
Loan Documents that require the Borrower to pay such amounts.
From time to time upon request of the Master Servicer or Special
Servicer and delivery to the Trustee and the Custodian of a Request for Release,
the Custodian shall promptly release the Mortgage File (or any portion thereof)
designated in such Request for Release to the Master Servicer or Special
Servicer, as applicable. Upon return of the foregoing to the Custodian, or in
the event of a liquidation or conversion of the Mortgage Loan or the Serviced
Whole Loan into an REO Property, or in the event of a substitution of a Mortgage
Loan pursuant to Section 2.03, or receipt by the Trustee and the Custodian of a
certificate of a Servicing Officer stating that such Mortgaged Property was
liquidated and that all amounts received or to be received in connection with
such liquidation which are required to be deposited into the Collection Account
or the applicable Serviced Whole Loan Collection Account, as applicable, have
been so deposited, or that such Mortgage Loan or Serviced Whole Loan has become
an REO Property, or that the Master Servicer has received a Qualifying
Substitute Mortgage Loan and the applicable Substitution Shortfall Amount, the
Custodian shall deliver a copy of the Request for Release to the Master Servicer
or Special Servicer, as applicable.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
Trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, 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
Borrower on the Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Note or Mortgage or
otherwise available at law or in equity. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and a
statement 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 3.12 Servicing Fees, Trustee Fees and Special Servicing
Compensation. (a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to the Servicing Fee with respect to each Mortgage
Loan that it is servicing. The Master Servicer's rights to the Servicing Fee may
not be transferred in whole or in part except in connection with the transfer of
all of the Master Servicer's responsibilities and obligations under this
Agreement. In addition, the Master Servicer shall be entitled to receive, as
additional Servicing Compensation, to the extent permitted by applicable law and
the related Mortgage Loans and Serviced Companion Loans that it is servicing and
the related Co-Lender Agreement, (i) all investment income earned on amounts on
deposit in its Collection Account (and with respect to each Serviced Whole Loan,
the related Serviced Whole Loan Collection Account) and certain Reserve Accounts
(to the extent consistent with the related Loan Documents), (ii) any late
payment charges and any Net Default Interest collected by the Master Servicer or
the Special Servicer during a Collection Period accrued on any Performing Loan,
in each case, remaining after application thereof during such Collection Period
to pay the Advance Interest Amount relating to such Performing Loan and any
unreimbursed Additional Trust Fund Expenses (other than Special Servicing Fees,
Workout Fees and Liquidation Fees) relating to such Performing Loan incurred
during or prior to such Collection Period and, in the case of the Serviced Whole
Loans, to the extent allocated to the related Mortgage Loan in the related
Co-Lender Agreement, and as further described in Section 3.12(d), (iii) any
amounts collected for checks returned for insufficient funds (with respect to
any Performing Loan or Specially Serviced Loan), loan service transaction fees,
demand fees, beneficiary statement charges or similar items (but not including
Prepayment or Yield Maintenance Charges) and (iv) to the extent permitted by
applicable law and the related Loan Documents 50% of any Assumption Fees,
due-on-sale fees, due-on-encumbrance fees, loan modification fees, extension
fees and any similar items relating to any Performing Loan (including any
related application fees) for as long as such Mortgage Loan or Serviced
Companion Loan is not a Specially Serviced Loan but excluding any Prepayment
Premiums or Yield Maintenance Charges, in each case to the extent received and
not required to be deposited or retained in its Collection Account or Serviced
Whole Loan Collection Account, in each case pursuant to Section 3.05; provided,
however, that (A) the Master Servicer shall not be entitled to apply or retain
as additional compensation, any late payment charges with respect to any
Mortgage Loan or Serviced Companion Loan with respect to which a monetary
default or monetary event of default thereunder has occurred and is continuing
unless and until such monetary default or monetary event of default has been
cured and all delinquent amounts (including any Default Interest not waived) due
with respect to such Mortgage Loan or Serviced Companion Loan have been paid and
(B) with respect to any Serviced Whole Loan, the related Net Default Interest,
late payment charges and assumption and similar fees shall be allocated between
the related Mortgage Loan and related Serviced Companion Loan as set forth in
the related Co-Lender Agreement; provided that such Penalty Charges shall be
applied to pay the Advance Interest Amount and Additional Trust Fund Expenses
(to the extent required by Section 3.12(d)) and advance interest to any other
master servicer or trustee under a related Serviced Companion Loan
Securitization Agreement for any advance made by such party with respect to any
Serviced Companion Loan. The Master Servicer shall also be entitled pursuant to,
and to the extent provided in, Sections 3.06(b)(viii) or 3.07(b), as applicable,
to withdraw from its Collection Account and to receive from any Borrower
Accounts (to the extent not payable to the related Borrower under the Mortgage
Loan or applicable law), Net Prepayment Interest Excess, if any, that accrue on
the Mortgage Loans that it is servicing and any interest or other income earned
on deposits therein.
As compensation for its activities hereunder on each Distribution
Date, the Trustee shall be entitled with respect to each Mortgage Loan to the
Trustee Fee, which shall be payable from amounts on deposit in the Lower-Tier
Distribution Account. The Trustee shall pay the routine fees of the Certificate
Registrar, the Paying Agent and the Authenticating Agent. The Trustee's rights
to the Trustee Fee may not be transferred in whole or in part except in
connection with the transfer of all of its responsibilities and obligations
under this Agreement.
Except as otherwise provided herein, the Master Servicer shall pay
all expenses incurred by it in connection with its servicing activities
hereunder, including all fees of any sub-servicers retained by it. Except as
otherwise provided herein, the Trustee shall pay all expenses incurred by it in
connection with its activities hereunder.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled with respect to each Specially Serviced Loan and REO
Loan to the Special Servicing Compensation, which shall be payable from amounts
on deposit in the Collection Account as set forth in Section 3.06. The Special
Servicer's rights to 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. In addition,
the Special Servicer shall be entitled to receive, as Special Servicing
Compensation, to the extent permitted by applicable law and the related Loan
Documents, (i) any late payment charges and any Net Default Interest collected
by the Master Servicer or the Special Servicer during a Collection Period
accrued on any Specially Serviced Loan remaining after application thereof
during such Collection Period (and, in the case of the Serviced Whole Loans, to
the extent allocated to the related Mortgage Loan as set forth in the related
Co-Lender Agreement and Section 3.12(d) herein) to pay the Advance Interest
Amount relating to such Specially Serviced Loan and any unreimbursed Additional
Trust Fund Expenses incurred during or prior to such Collection Period (but not
NSF check fees and the like, which shall be paid to the Master Servicer) as
further described below in this subsection (b), (ii) 50% of any Assumption Fees,
due-on-sale fees, due-on-encumbrance fees, loan modification fees, extension
fees, and other similar fees relating to any Performing Loan (including any
related application fees), excluding any Prepayment Premiums or Yield
Maintenance Charges, (iii) any interest or other income earned on deposits in
the REO Accounts, and (iv) 100% of any Assumption Fees, due-on-sale fees,
due-on-encumbrance fees, loan modification fees, extension fees, loan service
transaction fees, demand fees, beneficiary statement charges and other similar
fees (including any related application fees) relating to any Specially Serviced
Loan or REO Loan; provided, however, that the Special Servicer shall not be
entitled to apply or retain as additional compensation, any late payment charges
with respect to any Specially Serviced Loan with respect to which a monetary
default or monetary event of default thereunder has occurred and is continuing
unless and until such monetary default or monetary event of default has been
cured and all delinquent amounts (including any Default Interest not waived) due
with respect to such Mortgage Loan have been paid.
Except as otherwise provided herein, the Special Servicer shall pay
all expenses incurred by it in connection with its servicing activities
hereunder, including all fees of any sub-servicers retained by it.
(c) In addition, a Workout Fee will be payable to the Special
Servicer with respect to each Mortgage Loan or Serviced Companion Loan (other
than with respect to the Spectrum Centre B Loan) that ceases to be a Specially
Serviced Loan pursuant to the definition thereof. As to each such Mortgage Loan
or Serviced Companion Loan (other than the Spectrum Centre B Loan), the Workout
Fee will be payable out of each collection of interest and principal (including
scheduled payments, prepayments, Balloon Payments and payments at maturity)
received on such Mortgage Loan or Serviced Companion Loan (other than with
respect to the Spectrum Centre B Loan) for so long as it remains a Corrected
Mortgage Loan. The Workout Fee with respect to any such Mortgage Loan or
Serviced Companion Loan will cease to be payable if such loan again becomes a
Specially Serviced Loan or if the related Mortgaged Property becomes an REO
Property; provided that a new Workout Fee will become payable if and when such
Mortgage Loan or Serviced Companion Loan (other than the Spectrum Centre B Loan)
again ceases to be a Specially Serviced Loan. If the Special Servicer is
terminated (other than for cause) or resigns with respect to any or all of its
servicing duties, it shall retain the right to receive any and all Workout Fees
payable with respect to the Mortgage Loans or the Serviced Whole Loans that
cease to be a Specially Serviced Loan during the period that it had
responsibility for servicing this Specially Serviced Loan and that had ceased
being Specially Serviced Loans (or for any Specially Serviced Loan that had not
yet become a Corrected Mortgage Loan because as of the time that the Special
Servicer is terminated the borrower has not made three consecutive monthly debt
service payments and subsequently the Specially Serviced Loan becomes a
Corrected Mortgage Loan) at the time of such termination or resignation (and the
successor Special Servicer shall not be entitled to any portion of such Workout
Fees), in each case until the Workout Fee for any such loan ceases to be payable
in accordance with the preceding sentence.
A Liquidation Fee will be payable to the Special Servicer with
respect to each Mortgage Loan repurchased by a Mortgage Loan Seller after the
applicable time period (including any applicable extension thereof) in Section
2.03(d) or Specially Serviced Loan as to which the Special Servicer obtains a
full, partial or discounted payoff from the related Borrower and, except as
otherwise described below, with respect to any Specially Serviced Loan or REO
Property as to which the Special Servicer recovered any Liquidation Proceeds. As
to each such Mortgage Loan repurchased by a Mortgage Loan Seller after the
applicable time period (including any applicable extension thereof) in Section
2.03(d) or Specially Serviced Loan and REO Property, the Liquidation Fee will be
payable from the related payment or 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 (i) the purchase of any
Defaulted Mortgage Loan by the Special Servicer or the Controlling Class
Representative or any of their Affiliates, (ii) the purchase of all of the
Mortgage Loans and REO Properties by the Master Servicer, the Special Servicer
or the Controlling Class Representative in connection with the termination of
the Trust Fund or the purchase of all of the Mortgage Loans and all property
acquired in respect of any Mortgage Loan by the Sole Certificateholder pursuant
to Section 9.01, (iii) a repurchase of a Mortgage Loan by a Mortgage Loan Seller
pursuant to Section 2.03(d) prior to the expiration of the time periods
(including any applicable extension thereof) set forth therein, (iv) in the case
of any Serviced Whole Loan, the purchase of the related Mortgage Loan by the
holder of a related B Loan pursuant to the related Co-Lender Agreement, unless
such purchase is more than 60 days following the date such Certificateholder
could first exercise such purchase option; (v) in the case of any existing
mezzanine indebtedness or any mezzanine indebtedness that may exist on a future
date, the purchase of the related Mortgage Loan by a mezzanine lender, to the
extent permitted by the related mezzanine intercreditor agreement, unless such
purchase is more than 60 days following the date such mezzanine lender could
first exercise such purchase option, or (vi) a Loss of Value Payment by a
Mortgage Loan Seller. With respect to any future mezzanine debt, to the extent
not prohibited by the Mortgage Loan Documents, the Master Servicer or Special
Servicer, as applicable, shall require that the related mezzanine intercreditor
agreement provide that in the event of a purchase of a Mortgage Loan by the
related mezzanine lender on a date that is more than 90 days following the date
that the related option becomes exercisable, such mezzanine lender shall be
required to pay a Liquidation Fee equal to the amount that the Special Servicer
would otherwise be entitled to under this Agreement with respect to a
liquidation of such Mortgage Loan (provided, however, that such Liquidation Fee
shall in all circumstances be payable by the related mezzanine lender and shall
not, under any circumstance, by payable out of the Trust). If, however,
Liquidation Proceeds are received with respect to any Specially Serviced Loan as
to which 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 that constitute principal and/or interest. 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 Liquidation
Proceeds received on any Mortgage Loan or any Specially Serviced Loan. In the
event that (i) the Special Servicer has been terminated, and (ii) either prior
or subsequent to such termination, either (A) a Specially Serviced Loan was
liquidated or modified pursuant to an action plan submitted by the initial
Special Servicer and approved (or deemed approved) by the Directing
Certificateholder, or (B) a Specially Serviced Loan being monitored by the
Special Servicer subsequently became a Corrected Mortgage Loan, then in either
such event the Special Servicer shall be paid the related Workout Fee or
Liquidation Fee, as applicable.
The Special Servicer will also be entitled to additional fees in the
form of Penalty Charges on Specially Serviced Loans it is responsible for
servicing hereunder that accrued during such time as such Mortgage Loan or
Serviced Companion Loan was a Specially Serviced Loan, but only to the extent
actually paid by the related Borrower and to the extent that all amounts then
due and payable with respect to the related Mortgage Loan or Serviced Companion
Loan (including interest on Advances) have been paid and are not needed to
first, (x) reimburse the Trust Fund for Additional Trust Fund Expenses paid in
connection therewith during or prior to the Collection Period in which such
Penalty Charges were collected and (y) reimburse Advance Interest Amounts paid
to the Master Servicer, Trustee or Special Servicer, as applicable, and advance
interest to any other master servicer or trustee under a related Serviced
Companion Loan Securitization Agreement for any advance made by such party with
respect to any Serviced Companion Loan that accrued with respect to the related
Mortgage Loan or Serviced Companion Loan during the Collection Period in which
such Penalty Charges were collected; provided, that with respect to a Serviced
Companion Loan, Penalty Charges with respect to such Serviced Companion Loan
shall be paid to the holder of such Serviced Companion Loan as allocated in the
related Co-Lender Agreement. 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 Collection
Account or if a Serviced Whole Loan is involved, the applicable Serviced Whole
Loan Collection Account or the applicable REO Account or as a Property Advance,
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 Servicer or
Special Servicer, as applicable, with respect to Penalty Charges, on any
Distribution Date, the aggregate Penalty Charges collected on any Mortgage Loan
(other than with respect to a Serviced Whole Loan, with regard to which Penalty
Charges shall be allocated as set forth in the related Co-Lender Agreement)
during the related Collection Period shall be applied (as between Default
Interest and late payment changes, in the priority set forth in the definition
of "Advance Interest Amount") to reimburse (i) the Master Servicer, the Special
Servicer or the Trustee for interest on Advances with respect to such Mortgage
Loan that accrued in the period that such Penalty Charges were collected and
advance interest to any other master servicer or trustee under a related
Serviced Companion Loan Securitization Agreement that accrued on any advance
made by such party with respect to any Serviced Companion Loan, (ii) the Trust
Fund for all interest on Advances with respect to such Mortgage Loan or Serviced
Whole Loan previously paid to the Master Servicer, the Special Servicer or the
Trustee pursuant to Section 3.06(b)(vi) and (iii) the Trust Fund for any
Additional Trust Fund Expenses with respect to such Mortgage Loan paid in the
Collection Period that such Penalty Charges were collected and not previously
paid out of Penalty Charges, and any Penalty Charges remaining thereafter shall
be distributed pro rata to the Master Servicer and the Special Servicer based
upon the amount of Penalty Charges the Master Servicer or the Special Servicer
would otherwise have been entitled to receive during such period with respect to
such Mortgage Loan without any such application. For the avoidance of doubt, the
portion of Penalty Charges allocated to a Mortgage Loan that is part of a Whole
Loan (in accordance with the applicable Co-Lender Agreement) shall be allocated
in accordance with clauses (i), (ii) and (iii) above.
(e) [Reserved.]
(f) The Master Servicer, the Special Servicer and the Trustee shall
be entitled to reimbursement from the Trust Fund (and, in the case of any
Serviced Whole Loans, subject to the related Co-Lender Agreement, from the
related Serviced B Loan Noteholders) for the costs and expenses incurred by them
in the performance of their duties under this Agreement which are "unanticipated
expenses incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(iii). Such expenses shall include, by way of example and
not by way of limitation, environmental assessments, Updated Appraisals and
appraisals in connection with foreclosure, the fees and expenses of any
administrative or judicial proceeding and expenses expressly identified as
reimbursable in Section 3.06(b)(xviii). All such costs and expenses shall be
treated as costs and expenses of the Lower-Tier REMIC, and if not attributable
to a specific Mortgage Loan or Serviced Whole Loan, shall be allocated to the
Lower-Tier REMIC and, if applicable, the related Serviced Whole Loans.
(g) No provision of this Agreement or of the Certificates shall
require a Master Servicer, the Special Servicer or the Trustee to expend or risk
their own funds or otherwise incur any financial liability in the performance of
any of their duties hereunder or thereunder, or in the exercise of any of their
rights or powers, if, in the good faith business judgment of the Master
Servicer, Special Servicer or Trustee, as the case may be, repayment of such
funds would not be ultimately recoverable from late payments, Net Insurance
Proceeds, Net Liquidation Proceeds and other collections on or in respect of the
Mortgage Loans, or from adequate indemnity from other assets comprising the
Trust Fund against such risk or liability.
If a Master Servicer, the Special Servicer or the Trustee receives a
request or inquiry from a Borrower, any Certificateholder or any other Person
the response to which would, in the Master Servicer's, the Special Servicer's or
the Trustee's good faith business judgment require the assistance of Independent
legal counsel or other consultant to the Master Servicer, the Special Servicer
or the Trustee, the cost of which would not be an expense of the Trust Fund or
any Serviced Companion Loan Noteholder hereunder, then the Master Servicer, the
Special Servicer or the Trustee, as the case may be, shall not be required to
take any action in response to such request or inquiry unless such Borrower,
such Certificateholder, or such other Person, as applicable, makes arrangements
for the payment of the Master Servicer's, the Special Servicer's or the
Trustee's expenses associated with such counsel (including, without limitation,
posting an advance payment for such expenses) satisfactory to the Master
Servicer, the Special Servicer or the Trustee, as the case may be, in its sole
discretion. Unless such arrangements have been made, the Master Servicer, the
Special Servicer or the Trustee, as the case may be, shall have no liability to
any Person for the failure to respond to such request or inquiry.
Section 3.13 Reports to the Trustee; Collection Account Statements.
(a) Each Master Servicer shall deliver to the Trustee no later than 1:00 p.m.
(New York City time) one Business Day prior to the Servicer Remittance Date
prior to each Distribution Date, the CMSA Loan Periodic Update File with respect
to all of the Mortgage Loans that it is servicing for the related Distribution
Date (which shall include, without limitation, the amount of Available Funds
with respect to all of the Mortgage Loans, and with respect to each Loan Group,
to the extent applicable) including information therein that states the
anticipated P&I Advances for the related Distribution Date. Each Master
Servicer's responsibilities under this Section 3.13(a) with respect to REO Loans
shall be subject to the satisfaction of the Special Servicer's obligations under
Section 3.26. Each Master Servicer shall (no later than the time(s) that it or
any portion thereof is made available to the Trustee) make available to each
Serviced Companion Loan Noteholder with respect to the related Whole Loan, the
CMSA Reporting Package, on a monthly basis.
(b) For so long as a Master Servicer makes deposits into or credits
to and withdrawals or debits from its Collection Account or any Serviced Whole
Loan Collection Account, not later than 15 days after each Distribution Date,
the Master Servicer shall forward to the Trustee and each Serviced Companion
Loan Noteholder a statement prepared by the Master Servicer setting forth the
status of each of its Collection Account and each Serviced Whole Loan Collection
Account as of the close of business on the last Business Day of the prior month
and showing the aggregate amount of deposits into and withdrawals from its
Collection Account and each Serviced Whole Loan Collection Account of each
category of deposit (or credit) specified in Section 3.05 and each category of
withdrawal (or debit) specified in Section 3.06 for the related Collection
Period, in each case for the Mortgage Loans. The Trustee and its agents and
attorneys may at any time during normal business hours, upon reasonable notice,
inspect and copy the books, records and accounts of the Master Servicer solely
relating to the Mortgage Loans and the performance of its duties hereunder.
(c) Beginning in December 2006, no later than 4:00 p.m. (New York
City time) on each Servicer Remittance Date, the Master Servicer shall deliver
or cause to be delivered to the Trustee and the Serviced Companion Loan
Noteholders the following reports (in electronic form) with respect to the
Mortgage Loans that it is servicing (and, if applicable, the related REO
Properties), providing the required information as of the immediately preceding
Determination Date: (i) to the extent the Master Servicer has received the most
recent CMSA Special Servicer Loan File from the Special Servicer at the time
required, the most recent Delinquent Loan Status Report, Historical Liquidation
Report, Historical Loan Modification and Corrected Mortgage Loan Report, CMSA
Loan Setup File (with respect to the first Distribution Date) and REO Status
Report received from such Special Servicer, (ii) the most recent CMSA Property
File, CMSA Financial File, Comparative Financial Status Report and the Loan
Level Reserve/LOC Report (in each case incorporating the data required to be
included in the CMSA Special Servicer Loan File), (iii) the Watch List with
information that is current as of such Determination Date and (iv) the Advance
Recovery Report.
The information that pertains to Specially Serviced Loans and REO
Properties reflected in such reports shall be based solely upon the reports
delivered by the Special Servicer to the Master Servicer at least four Business
Days prior to the related Servicer Remittance Date in the form required by
Section 3.13(f) or shall be provided by means of such reports so delivered by
the Special Servicer to the Master Servicer in the form so required. In the
absence of manifest error, the Master Servicer shall be entitled to conclusively
rely upon, without investigation or inquiry, the information and reports
delivered to it by the Special Servicer, and the Trustee shall be entitled to
conclusively rely upon the Master Servicer's reports and the Special Servicer's
reports without any duty or obligation to recompute, verify or recalculate any
of the amounts and other information stated therein.
(d) The Master Servicer shall deliver or cause to be delivered to
the Trustee, the Underwriters, the Serviced Companion Loan Noteholders and to
any Rating Agency, the following materials, in each case to the extent that such
materials or the information on which they are based have been received by the
Master Servicer with respect to the Mortgage Loans that the Master Servicer is
servicing:
(i) At least annually, on or before June 30 of each year, beginning
with June 30, 2007, with respect to each Mortgage Loan and REO Loan (to
the extent prepared by and received from the Special Servicer (in written
format or in electronic media) in the case of any Specially Serviced Loan
or REO Loan), an Operating Statement Analysis Report for the related
Mortgaged Property or REO Property as of the end of the preceding calendar
year (initially, year-end 2006), together with copies of the related
operating statements and rent rolls (but only to the extent the related
Borrower is required by the Mortgage to deliver, or otherwise agrees to
provide such information and, with respect to operating statements and
rent rolls for Specially Serviced Loans and REO Properties, only to the
extent requested by the Special Servicer) for the current trailing 12
months, if available, or year-to-date. The Master Servicer (or the Special
Servicer in the case of Specially Serviced Loans and REO Properties) shall
use commercially reasonable efforts to obtain said annual and other
periodic operating statements and related rent rolls, which efforts shall
include a letter sent to the related Borrower (followed up with telephone
calls), requesting such annual and other periodic operating statements and
related rent rolls until they are received to the extent such action is
consistent with applicable law and the terms of the Mortgage Loans. Upon
receipt of such annual and other periodic operating statements (including
year-to-date statements) and related rent rolls and the Master Servicer
shall promptly update the Operating Statement Analysis Report.
(ii) Within 45 days after receipt by the Master Servicer (or within
60 days of receipt by the Special Servicer in the case of a Specially
Serviced Loan or REO Property) of any annual year-end operating statements
with respect to any Mortgaged Property or REO Property (to the extent
prepared by and received from the Special Servicer in the case of any
Specially Serviced Loan or REO Property), an NOI Adjustment Worksheet for
such Mortgaged Property (with the annual year-end operating statements
attached thereto as an exhibit). The Master Servicer will use the
"Normalized" column from the NOI Adjustment Worksheet to update the full
year-end data on any Operating Statement Analysis Report and will use any
operating statements received with respect to any Mortgaged Property
(other than any Mortgaged Property which is REO Property or constitutes
security for a Specially Serviced Loan) to update the Operating Statement
Analysis Report for such Mortgaged Property.
The Master Servicer shall maintain one Operating Statement Analysis
Report for each Mortgaged Property and REO Property (to the extent prepared by
and received from the Special Servicer in the case of any REO Property or any
Mortgaged Property constituting security for a Specially Serviced Loan) relating
to a Mortgage Loan that it is servicing. The Operating Statement Analysis Report
for each Mortgaged Property (other than any such Mortgaged Property which is an
REO Property or constitutes security for a Specially Serviced Loan) is to be
updated with trailing 12-month information, as available (commencing with the
quarter ending December 31, 2006), or year-to-date information until 12-month
trailing information is available by the Master Servicer and such updated report
shall be delivered to the Trustee and any related Serviced Companion Loan
Noteholder in the calendar month following receipt by the Master Servicer of
such updated trailing or year-to-date operating statements and related rent
rolls for such Mortgaged Property.
The Special Servicer will be required pursuant to Section 3.13(g) to
deliver to the Master Servicer the information required of it pursuant to this
Section 3.13(d) with respect to Specially Serviced Loans and REO Loans
commencing in December 2006, in addition to within 45 days after its receipt of
any operating statement and related rent rolls for any related Mortgaged
Property or REO Property.
(e) In connection with their servicing of the Mortgage Loans, the
Master Servicer and the Special Servicer shall provide to each other and to the
Trustee, any Directing Certificateholder and, if such Mortgage Loan is part of a
Serviced Whole Loan, the related Serviced Companion Loan Noteholder, written
notice of any event that comes to their knowledge with respect to a Mortgage
Loan or REO Property that the Master Servicer or the Special Servicer,
respectively, determines, in accordance with the Servicing Standard, would have
a material adverse effect on such Mortgage Loan or REO Property, which notice
shall include an explanation as to the reason for such material adverse effect.
(f) At least four Business Days prior to each Servicer Remittance
Date, the Special Servicer shall deliver, or cause to be delivered, to the
Master Servicer and, upon the request of any of the Trustee, the Depositor, the
Controlling Class, any Serviced Companion Loan Noteholder, any Directing
Certificateholder or any Rating Agency, to such requesting party, the CMSA
Specially Serviced Loan File with respect to the Specially Serviced Loans (and,
if applicable, the related REO Properties), providing the required information
as of the Determination Date (or, upon the reasonable request of the Master
Servicer, data files in a form acceptable to the Master Servicer), which CMSA
Specially Serviced Loan File shall include data, to enable the Master Servicer
to produce the following CMSA Supplement Reports: (i) a Delinquent Loan Status
Report; (ii) an Historical Liquidation Report; (iii) an Historical Loan
Modification and corrected Mortgage Loan Report; (iv) an REO Status Report; (v)
Comparative Financial Status Reports; (vi) CMSA Loan Periodic Update File; (vii)
a CMSA Property File; (viii) a CMSA Financial File; (ix) a NOI Adjustment
Worksheet; (x) an Operating Statement Analysis Report; and (xi) the Advance
Recovery Report. Such reports or data shall be presented in writing and on a
computer readable magnetic medium or other electronic format acceptable to the
Master Servicer.
(g) The Special Servicer shall deliver or cause to be delivered to
the Master Servicer and, upon the request of any of the Trustee, the Depositor,
the Controlling Class, any Serviced Companion Loan Noteholder, any Directing
Certificateholder or any Rating Agency, to such requesting party, without
charge, the following materials for Specially Serviced Loans, in each case to
the extent that such materials or the information on which they are based have
been received by the Special Servicer:
(i) At least annually, on or before June 1 of each year, commencing
with 2007, with respect to each Specially Serviced Loan and REO Loan, an
Operating Statement Analysis Report for the related Mortgaged Property or
REO Property as of the end of the preceding calendar year, together with
copies of the operating statements and rent rolls for the related
Mortgaged Property or REO Property as of the end of the preceding calendar
year (but only to the extent the related Borrower is required by the
Mortgage to deliver, or otherwise agrees to provide, such information and,
with respect to operating statements and rent rolls for Specially Serviced
Loans and REO Properties, only to the extent requested by the Special
Servicer) and for the current trailing 12 months, if available, or
year-to-date. The Special Servicer shall use its best reasonable efforts
to obtain said annual and other periodic operating statements and related
rent rolls with respect to each Mortgaged Property constituting security
for a Specially Serviced Loan and each REO Property, which efforts shall
include a letter sent to the related Borrower or other appropriate party
each quarter (followed up with telephone calls) requesting such annual and
other periodic operating statements and rent rolls until they are
received.
(ii) Within 45 days of receipt by the Special Servicer of any annual
operating statements with respect to any Mortgaged Property relating to a
Specially Serviced Loan, an NOI Adjustment Worksheet for such Mortgaged
Property or REO Property (with the annual operating statements attached
thereto as an exhibit); provided, however, that, with the consent of the
Master Servicer, the Special Servicer may instead provide data files in a
form acceptable to the Master Servicer. The Special Servicer will use the
"Normalized" column from the NOI Adjustment Worksheet to update the full
year-end data on any Operating Statement Analysis Report and will use any
operating statements received with respect to any Mortgaged Property which
is an REO Property or constitutes security for a Specially Serviced Loan
to update the Operating Statement Analysis Report for such Mortgaged
Property.
The Special Servicer shall maintain one Operating Statement Analysis
Report for each Mortgaged Property securing a Specially Serviced Loan and REO
Property. The Operating Statement Analysis Report for each Mortgaged Property
which constitutes security for a Specially Serviced Loan or is an REO Property
is to be updated by the Special Servicer and such updated report delivered to
the Master Servicer within 45 days after receipt by the Special Servicer of
updated operating statements for each such Mortgaged Property; provided,
however, that, with the consent of the Master Servicer, the Special Servicer may
instead provide data files in a form acceptable to the Master Servicer. The
Special Servicer shall provide each such report to the Master Servicer in the
then applicable CMSA format.
(h) The Master Servicer or Special Servicer, as applicable, upon
receipt from the CGCMT 2006-C4 Master Servicer or CGCMT 2006-C4 Special
Servicer, as applicable, of reports relating to the ShopKo Portfolio Mortgage
Loan and related Mortgaged Property, shall aggregate such information with the
information regarding the Mortgage Loans and the Mortgaged Properties in the
Master Servicer's or Special Servicer's possession, as applicable, which
aggregated information shall be presented in the CMSA Reports prepared by it for
the relevant reporting period.
(i) The Trustee shall be entitled to rely conclusively on and shall
not be responsible for the content or accuracy of any information provided to it
by the Master Servicer or the Special Servicer pursuant to this Agreement.
Section 3.14 [Reserved].
Section 3.15 [Reserved].
Section 3.16 Access to Certain Documentation. The Master Servicer
and Special Servicer shall provide to any Certificateholders and the Serviced
Companion Loan Noteholders (and any registered holder or beneficial owner of
Companion Loan Securities) that are federally insured financial institutions,
the Federal Reserve Board, the FDIC and the OTS and the supervisory agents and
examiners of such boards and such corporations, and any other governmental or
regulatory body to the jurisdiction of which any Certificateholder or Serviced
Companion Loan Noteholder (or any registered holder or beneficial owner of
Companion Loan Securities) is subject, access to the documentation regarding the
Mortgage Loans or the Serviced Whole Loans, as applicable, that it is servicing
required by applicable regulations of the Federal Reserve Board, FDIC, OTS or
any such governmental or regulatory body, such access being afforded without
charge but only upon reasonable written request and during normal business hours
at the offices of the Master Servicer or Special Servicer. In addition, upon
reasonable prior written notice to the Master Servicer or the Special Servicer,
as the case may be, the Depositor or their accountants or other representatives
shall have access to review the documents, correspondence and records of the
Master Servicer or the Special Servicer, as the case may be, as they relate to a
Mortgaged Property and any REO Property during normal business hours at the
offices of the Master Servicer or the Special Servicer, as the case may be.
Nothing in this Section 3.16 shall detract from the obligation of the Master
Servicer and Special Servicer to observe any applicable law prohibiting
disclosure of information with respect to the Borrowers, and the failure of the
Master Servicer and Special Servicer to provide access as provided in this
Section 3.16 as a result of such obligation shall not constitute a breach of
this Section 3.16.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, Serviced Companion Loan
Noteholder (or any registered holder or beneficial owner of Companion Loan
Securities) or any regulatory authority that may exercise authority over a
Certificateholder or Serviced Companion Loan Noteholder (or any registered
holder or beneficial owner of Companion Loan Securities), the Master Servicer
and the Special Servicer may each require payment from such Certificateholder or
Serviced Companion Loan Noteholder (or any registered holder or beneficial owner
of Companion Loan Securities)(to the extent permitted in the related Co-Lender
Agreement) of a sum sufficient to cover the reasonable costs and expenses of
providing such information or access, including copy charges and reasonable fees
for employee time and for space; provided that no charge may be made if such
information or access was required to be given or made available under
applicable law. In connection with providing Certificateholders access to the
information described in the preceding paragraph the Master Servicer and the
Special Servicer may require (prior to affording such access) a written
confirmation executed by the requesting Person substantially in such form as may
be reasonably acceptable to the Master Servicer or the Special Servicer, as the
case may be, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book Entry Certificates and will keep
such information confidential.
Upon the reasonable request of any Certificateholder identified to
the Master Servicer to the Master Servicer's reasonable satisfaction (or, with
respect to any Serviced Companion Loan, any Serviced Companion Loan Noteholder,
registered holder or beneficial owner of Companion Loan Securities), the Master
Servicer may provide (or forward electronically) (at the expense of such
Certificateholder or Serviced Companion Loan Noteholder, registered holder or
beneficial owner of Companion Loan Securities) copies of any operating
statements, rent rolls and financial statements obtained by the Master Servicer
or the Special Servicer; provided that, in connection therewith, the Master
Servicer may require a written confirmation executed by the requesting Person
substantially in such form as may be reasonably acceptable to the Master
Servicer or Special Servicer, generally to the effect that such Person is a
Holder of Certificates or a beneficial holder of Book Entry Certificates (or
registered holder or beneficial owner of Companion Loan Securities) and will
keep such information confidential.
Section 3.17 Title and Management of REO Properties and REO
Accounts. (a) In the event that title to any Mortgaged Property is acquired for
the benefit of Certificateholders (and, in the case of the Serviced Whole Loans,
the related Serviced Companion Loan Noteholders) in foreclosure, by deed in lieu
of foreclosure or upon abandonment or reclamation from bankruptcy, the deed or
certificate of sale shall be taken in the name of the Trustee, or its nominee
(which shall not include either Master Servicer), or a separate Trustee or
co-Trustee, on behalf of the Trust Fund (and, in the case of the Serviced Whole
Loans, the related Serviced Companion Loan Noteholders). The Special Servicer,
on behalf of the Trust Fund (and, in the case of the Serviced Whole Loans, the
related Serviced Companion Loan Noteholders), shall dispose of 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 for purposes of Section
860G(a)(8) of the Code, unless (i) the Special Servicer on behalf of the
Lower-Tier REMIC has applied for an extension of such period pursuant to
Sections 856(e)(3) and 860G(a)(8)(A) of the Code, in which case the Special
Servicer shall sell such REO Property within the applicable extension period or
(ii) the Special Servicer seeks and subsequently receives an Opinion of Counsel
(which opinion shall be an expense of the Trust Fund), addressed to the Special
Servicer and the Trustee, to the effect that the holding by the Trust Fund of
such REO Property for an additional specified period will not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code) at any time that any
Certificate is outstanding, in which event such period shall be extended by such
additional specified period subject to any conditions set forth in such Opinion
of Counsel. The Special Servicer, on behalf of the Trust Fund (and, in the case
of the Serviced Whole Loans, the related Serviced Companion Loan Noteholders),
shall dispose of any REO Property held by the Trust Fund prior to the last day
of such period (taking into account extensions) by which such REO Property is
required to be disposed of pursuant to the provisions of the immediately
preceding sentence in a manner provided under Section 3.18 hereof. The Special
Servicer shall manage, conserve, protect and operate each REO Property for the
Certificateholders (and, in the case of the Serviced Whole Loans, the related
Serviced Companion Loan Noteholders) solely for the purpose of its prompt
disposition and sale in a manner which does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a)). With respect to any REO Property with respect to the ShopKo
Portfolio Mortgage Loan, the Special Servicer shall coordinate with the CGCMT
2006-C4 Special Servicer to ensure, including obtaining any applicable
extension, that such REO Property shall be disposed of within the required time
limits.
(b) The Special Servicer shall have full power and authority,
subject only to the Servicing Standard and the specific requirements and
prohibitions of this Agreement, to do any and all things in connection with any
REO Property as are consistent with the manner in which the Special Servicer
manages and operates similar property owned or managed by the Special Servicer
or any of its Affiliates, all on such terms and for such period as the Special
Servicer deems to be in the best interests of Certificateholders and, in the
case of the Serviced Whole Loans, the related Serviced Companion Loan
Noteholders and, in connection therewith, the Special Servicer shall agree to
the payment of management fees that are consistent with general market
standards. Consistent with the foregoing, the Special Servicer shall cause or
permit to be earned with respect to such REO Property any "net income from
foreclosure property," within the meanings of Section 860G(c) of the Code, which
is subject to tax under the REMIC Provisions, only if it has determined, and has
so advised the Trustee in writing, that the earning of such income on a net
after-tax basis could reasonably be expected to result in a greater recovery on
behalf of Certificateholders (and, in the case of the Serviced Whole Loans, the
related Serviced Companion Loan Noteholders) than an alternative method of
operation or rental of such REO Property that would not be subject to such a
tax.
The Special Servicer shall segregate and hold all revenues received
by it with respect to any REO Property separate and apart from its own funds and
general assets and shall establish and maintain with respect to any REO Property
a segregated custodial account (each, an "REO Account"), each of which shall be
an Eligible Account and shall be entitled "LaSalle Bank National Association, as
Trustee, in trust for Holders of Deutsche Mortgage & Asset Receiving
Corporation, CD 2006-CD3 Commercial Mortgage Pass-Through Certificates REO
Account." With respect to an REO Property securing a Serviced Whole Loan, the
Special Servicer shall establish an REO Account solely with respect to such
property (each such account, a "Serviced Whole Loan REO Account"), each of which
shall be an Eligible Account and shall be entitled "LaSalle Bank National
Association, as Trustee, in trust for Holders of Deutsche Mortgage & Asset
Receiving Corporation, CD 2006-CD3 Commercial Mortgage Pass-Through Certificates
and the related Serviced Companion Loan Noteholders REO Account," to be held for
the benefit of the Certificateholders and the related Serviced Companion Loan
Noteholders. The Special Servicer shall be entitled to withdraw for its account
any interest or investment income earned on funds deposited in an REO Account or
a Serviced Whole Loan REO Account to the extent provided in Section 3.07(b). The
Special Servicer shall deposit or cause to be deposited REO Proceeds in the REO
Account or the applicable Serviced Whole Loan REO Account within one Business
Day after receipt of such REO Proceeds, and shall withdraw therefrom funds
necessary for the proper operation, management and maintenance of such REO
Property and for other Property Protection Expenses with respect to such REO
Property, including:
(i) all insurance premiums due and payable in respect of any REO
Property;
(ii) all real estate taxes and assessments in respect of any REO
Property that may result in the imposition of a lien thereon;
(iii) all costs and expenses reasonable and necessary to protect,
maintain, manage, operate, repair and restore any REO Property including,
if applicable, the payments of any ground rents in respect of such REO
Property; and
(iv) any taxes imposed on the Lower-Tier REMIC in respect of net
income from foreclosure property in accordance with Section 4.05.
To the extent that such REO Proceeds are insufficient for the
purposes set forth in clauses (i) through (iii) above, the Master Servicer shall
or, on an emergency basis, in accordance with Section 3.24(b), the Special
Servicer may, make such Advance unless the Master Servicer or the Special
Servicer, as applicable, determines, in accordance with the Servicing Standard,
that such Property Advance would constitute a Nonrecoverable Advance (provided
that with respect to advancing insurance premiums or delinquent tax assessments
the Master Servicer shall comply with the provisions of the second to last
paragraph in Section 3.24(d)) and if the Master Servicer does not make any such
Advance, the Trustee, to the extent the Trustee has actual knowledge of the
Master Servicer's failure to make such Advance, shall make such Advance, unless
in each case, the Special Servicer, the Master Servicer or the Trustee, as
applicable, determines that such Advance would be a Nonrecoverable Advance. The
Trustee shall be entitled to rely, conclusively, on any determination by the
Special Servicer or the Master Servicer, as applicable, that an Advance, if
made, would be a Nonrecoverable Advance. The Trustee, when making an independent
determination whether or not a proposed Advance would be a Nonrecoverable
Advance, shall be subject to the standards applicable to the Master Servicer
hereunder. The Special Servicer, Master Servicer or the Trustee, as applicable,
shall be entitled to reimbursement of such Advances (with interest at the
Advance Rate) made pursuant to the preceding sentence, to the extent permitted
by Section 3.06. The Special Servicer shall withdraw from each REO Account or
Serviced Whole Loan REO Account, as applicable, and remit to the Master Servicer
for deposit into its Collection Account or the applicable Serviced Whole Loan
Collection Account, as applicable, on a monthly basis prior to or on the related
Due Date the Net REO Proceeds received or collected from each REO Property,
except that in determining the amount of such Net REO Proceeds, the Special
Servicer may retain in each REO Account or Serviced Whole Loan REO Account, as
applicable, reasonable reserves for repairs, replacements and necessary capital
improvements and other related expenses.
Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit any New Lease to be entered into, renewed or extended, 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 repair or maintenance thereof or the completion of a
building or other improvement thereon, and then only if more than ten
percent 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 Person to Directly Operate any
REO Property on any date more than 90 days after its date of acquisition
by the Trust Fund, unless such Person is an Independent Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund) 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 (determined without regard
to the exception applicable for purposes of Section 860D(a) of the Code) at any
time that it is held by the Trust Fund, in which case the Special Servicer may
take such actions as are specified in such Opinion of Counsel.
The Special Servicer shall be required to contract with an
Independent Contractor, the fees and expenses of which shall be an expense of
the Trust Fund (and, in the case of the Serviced Whole Loans, first of the
related Serviced B Loan Noteholder, if any, and second, to the extent such
expense remains unpaid, the Mortgage Loan (or in the case of a Serviced Whole
Loan with a Pari Passu Companion Loan, to the holders related Mortgage Loan and
Pari Passu Companion Loan on a pro rata basis in accordance with their
outstanding principal balances)) and payable out of REO Proceeds, for the
operation and management of any REO Property, within 90 days of the Trust Fund's
acquisition thereof (unless the Special Servicer shall have provided the Trustee
with an Opinion of Counsel that the operation and management of any REO Property
other than through an Independent Contractor shall not cause such REO Property
to fail to qualify as "foreclosure property" within the meaning of Code Section
860G(a)(8)) (which opinion shall be an expense of the Trust Fund) provided that:
(i) the terms and conditions of any such contract shall be
reasonable and customary for the area and type of property and shall not
be inconsistent herewith;
(ii) any such contract shall require, or shall be administered to
require, that the Independent Contractor pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including those listed above, and remit all related revenues
(net of such costs and expenses) to the Special Servicer as soon as
practicable, but in no event later than 30 days following the receipt
thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.17(b) 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 to the Trust Fund, the Trustee on behalf of the
Certificateholders or, in the case of a Serviced Whole Loan, the related
Serviced Companion Loan Noteholders, with respect to the operation and
management of any such REO Property; and
(iv) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
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.
(c) Promptly following any acquisition by the Special Servicer of an
REO Property on behalf of the Trust Fund, the Special Servicer shall notify the
Master Servicer thereof, and, upon receipt of such notice, the Special Servicer
shall obtain an Updated Valuation thereof, but only in the event that any
Updated Valuation with respect thereto is more than 12 months old and the
Special Servicer has no actual knowledge of any material adverse change in
circumstances that, consistent with the Servicing Standard, would call into
question the validity of such Updated Appraisal, in order to determine the fair
market value of such REO Property and shall notify the Depositor and the Master
Servicer and with respect to a Serviced Whole Loan, the holder of the related
Serviced Companion Loan, if any, of the results of such Appraisal. Any such
Appraisal shall be conducted in accordance with Appraisal Institute standards
and the cost thereof shall be an expense of the Trust Fund (allocated, to the
Principal Balance Certificates in reverse-sequential order) and, in the case of
the Serviced Whole Loans, first to the related Serviced B Loan Noteholders, if
any, and second, to the extent such cost remains unpaid, to the Mortgage Loan
(or in the case of a Serviced Whole Loan with a Pari Passu Companion Loan, to
the holders related Mortgage Loan and Pari Passu Companion Loan on a pro rata
basis in accordance with their outstanding principal balances). The Special
Servicer shall obtain a new Updated Valuation or a letter update every 12 months
thereafter until the REO Property is sold.
(d) When and as necessary, the Special Servicer shall send to the
Trustee 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).
(e) Upon the disposition of any REO Property in accordance with this
Section 3.17, the Special Servicer shall calculate the Excess Liquidation
Proceeds allocable to a Mortgage Loan or the applicable Serviced Whole Loan, if
any, realized in connection with such sale.
Section 3.18 Sale of Specially Serviced Loans and REO Properties.
(a) Each of the Controlling Class Representative and the Special Servicer (in
that order) may sell or purchase, or permit the sale or purchase of, a Mortgage
Loan (other than the ShopKo Portfolio Mortgage Loan) only on the terms and
subject to the conditions set forth in this Section 3.18 or as otherwise
expressly provided in or contemplated by Section 2.03(d) and Section 9.01 or in
an applicable Co-Lender Agreement.
(b) Within 60 days after a Mortgage Loan (and, with respect to the
Ala Moana Portfolio Mortgage Loan, the related Serviced Companion Loans) becomes
a Defaulted Mortgage Loan (or, in the case of a Balloon Loan, if a payment
default shall have occurred with respect to the related Balloon Payment, then
after a Servicing Transfer Event shall have occurred with respect to such
Balloon Payment default), the Special Servicer shall determine the fair value of
such Mortgage Loan (and, with respect to the Ala Moana Portfolio Mortgage Loan,
the related Serviced Companion Loans) in accordance with the Servicing Standard;
provided, however, that such determination shall be made without taking into
account any effect the restrictions on the sale of such Mortgage Loan (and, with
respect to the Ala Moana Portfolio Mortgage Loan, the related Serviced Companion
Loans) 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 a new 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 30 days) after its receipt of such new
Appraisal. The Special Servicer shall recalculate, from time to time, but not
less often than every 90 days, its determination of the fair value of a
Defaulted Mortgage Loan (and, with respect to the Ala Moana Portfolio Mortgage
Loan, the related Serviced Companion Loans) based upon changed circumstances,
new information or otherwise, in accordance with the Servicing Standard. The
Special Servicer shall notify the Trustee, the Master Servicer, each Rating
Agency and the Controlling Class Representative (and with respect to the
Serviced Whole Loans, the Directing Certificateholder and each Serviced
Companion Loan Noteholder or if such Serviced Companion Loan has been
securitized, the applicable Serviced Companion Loan Trustee (who shall promptly
notify, in writing, the Directing Certificateholder (as defined in the related
Serviced Companion Loan Securitization Agreement) of that securitization or an
analogous party) promptly upon its fair value determination and any adjustment
thereto and provide to each such party a reasonable explanation of how it made
the subject fair value determination together with all reasonably requested
backup information and supporting documentation. 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 or Serviced Whole 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, the expected recovery from the Mortgage Loan if
the Special Servicer were to pursue a workout strategy, and the time and expense
associated with a purchaser's foreclosing on the related Mortgaged Property. In
addition, the Special Servicer shall refer to 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 may consider
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,
to the extent it is reasonable to do so in accordance with the Servicing
Standard, conclusively rely on any opinions or reports of qualified Independent
experts in real estate or commercial mortgage loan matters with at least five
years' experience in valuing or investing in loans similar to the subject
Specially Serviced Loan, selected with reasonable care by the Special Servicer,
in making such determination. All reasonable costs and expenses incurred by the
Special Servicer pursuant to this Section 3.18(b) shall constitute, and be
reimbursable as, Property Advances. The other parties to this Agreement shall
cooperate with all reasonable requests for information made by the Special
Servicer in order to allow the Special Servicer to perform its duties pursuant
to this Section 3.18(b).
(c) Subject to the terms set forth in Section 2.03 and with respect
to any Whole Loan, subject to the purchase option of the related B Loan holder
in accordance with the related Co-Lender Agreement, if any, and subject to any
purchase option that a mezzanine lender may have in accordance with the related
mezzanine intercreditor agreement, in the event a Mortgage Loan becomes a
Defaulted Mortgage Loan, the Controlling Class Representative and the Special
Servicer (but only if the Controlling Class Representative or the Special
Servicer, as applicable, is not an affiliate of the related Mortgage Loan
Seller) (in that order) shall have an assignable option (a "Purchase Option") to
purchase such Defaulted Mortgage Loan (but not any Serviced Companion Loan) from
the Trust Fund at a price (the "Option Price") equal to (i) the Repurchase
Price, if the Special Servicer has not yet determined the fair value of the
Defaulted Mortgage Loan, or (ii) the fair value of the Defaulted Mortgage Loan
as determined by the Special Servicer in the manner described in Section 3.18(b)
and in accordance with the Servicing Standard, if the Special Servicer has made
such fair value determination. Any holder of a Purchase Option may sell,
transfer, assign or otherwise convey its Purchase Option with respect to any
Defaulted Mortgage Loan to any party (other than a Person whose purchase of such
Defaulted Loan would violate the terms of any related Co-Lender Agreement or
mezzanine intercreditor agreement (and, with respect to the Mortgage Loan known
as "High Point Furniture," other than a Person whose purchase of such Defaulted
Loan would violate the terms of the related Loan Agreement)) at any time after
the related Mortgage Loan becomes a Defaulted Mortgage Loan. The transferor of
any Purchase Option shall notify the Trustee, the Special Servicer and the
Master Servicer 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.
Notwithstanding the foregoing, the Controlling Class Representative shall have
the right to exercise its Purchase Option prior to any exercise of the Purchase
Option by the Special Servicer; provided, however, if the Purchase Option is not
exercised by the Controlling Class Representative or any assignee thereof within
60 days of a Mortgage Loan becoming a Defaulted Mortgage Loan, then the Special
Servicer shall have the right to exercise its Purchase Option prior to any
exercise by the Controlling Class Representative and the Special Servicer or its
assignee may exercise such Purchase Option at any time during the 15-day period
immediately following the expiration of such 60-day period. Following the
expiration of such 15-day period, the Controlling Class Representative shall
again have the exclusive right to exercise the Purchase Option. If not exercised
earlier, the Purchase Option with respect to any Defaulted Mortgage Loan will
automatically terminate (i) 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 after a new fair value calculation is made pursuant
to clause (b) above, (ii) 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, (iii) the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout, (iv)
upon a repurchase of a Defaulted Mortgage Loan by the applicable Mortgage Loan
Seller due to the Mortgage Loan Seller's breach of a representation or document
defect with respect to such Defaulted Mortgage Loan and (v) the purchase of any
B Loan holder or mezzanine lender in accordance with the related Co-Lender
Agreement, or mezzanine intercreditor agreement, as applicable.
(d) Upon receipt of notice from the Special Servicer indicating that
a Mortgage Loan has become a Defaulted Mortgage Loan, the holder (whether the
original grantee of such option or any subsequent transferee) of the Purchase
Option may exercise the Purchase Option by providing the Master Servicer, the
Special Servicer and the Trustee at least five days prior written notice thereof
(the "Purchase Option Notice"), in the form of Exhibit N attached hereto, 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 3.18(c). The exercise of any
Purchase Option pursuant to this clause (d) shall be irrevocable.
(e) If the Special Servicer or, if the Controlling Class
Representative is an affiliate of the Special Servicer, the Controlling Class
Representative or any of their respective Affiliates is identified in the
Purchase Option Notice as the Person expected to acquire the related Mortgage
Loan, the Master Servicer shall determine (or, if the Special Servicer has made
such determination, shall confirm) the fair value and must obtain a Third Party
Appraiser to perform an Appraisal (at the expense of the Trust Fund), as soon as
reasonably practicable after the Master Servicer has received the written
notice, of whether the Option Price represents fair value for the Defaulted
Mortgage Loan; provided that, if the Master Servicer requests the Third Party
Appraiser to perform a new Appraisal with respect to the related Mortgaged
Property, then the Third Party Appraiser retained by the Master Servicer shall
make its fair value determination with respect to such Mortgage Loan as soon as
reasonably practicable (but in any event within forty-five (45) days) after the
completion of such new Appraisal. Such fair value determination made by the
Master Servicer shall be made in accordance with the Servicing Standard;
provided that, absent manifest error, the Master Servicer may conclusively rely
on the opinion of the Third Party Appraiser in making such determination;
provided that, in choosing such Third Party Appraiser the Master Servicer shall
use reasonable care in accordance with the Servicing Standard. In determining
the fair value of any Defaulted Mortgage Loan, the Third Party Appraiser
retained by the Master Servicer shall take into account, among other factors,
the period and amount of the delinquency on such Mortgage Loan or Serviced Whole
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, the expected recovery from the Mortgage Loan if a workout
strategy were pursued and the time and expense associated with a purchaser's
foreclosing on the related Mortgaged Property. In addition, the Third Party
Appraiser retained by the Master Servicer shall refer to the Servicing Standard
and all other relevant information delivered to it by the Master Servicer or
otherwise contained in the Mortgage File; provided that the Third Party
Appraiser retained by the Master Servicer shall take account of any known change
in circumstances regarding the related Mortgaged Property that has occurred
subsequent to, and that would, in its reasonable judgment, materially affect the
value of the related Mortgaged Property. Furthermore, the Third Party Appraiser
retained by the Master Servicer shall consider all available objective
third-party information obtained from generally available sources, 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 Third Party Appraiser retained by the Master Servicer may rely on
the opinion and reports of other parties in making such determination and on the
most current Appraisal obtained for the related Mortgaged Property pursuant to
this Agreement. The costs of the Third Party Appraiser and all appraisals,
inspection reports and broker opinions of value, reasonably incurred by such
Third Party Appraiser or otherwise incurred pursuant to this subsection shall be
advanced by the Master Servicer and shall constitute, and be reimbursable as
Property Advances (or if such advance is deemed to be a Nonrecoverable Advance
such costs shall be reimbursable as Trust Fund expenses from its Collection
Account pursuant to Section 3.06(b)) or the applicable Serviced Whole Loan
Collection Account pursuant to Section 3.06(c). The other parties to this
Agreement shall cooperate with all reasonable requests for information.
(f) Unless and until the Purchase Option with respect to a Defaulted
Mortgage Loan is exercised, the Special Servicer shall pursue such other
resolution strategies available hereunder with respect to such Defaulted
Mortgage Loan, including, without limitation, workout and foreclosure, as the
Special Servicer may deem appropriate consistent with the Servicing Standard;
provided, however, the Special Servicer will not be permitted to sell the
Defaulted Mortgage Loan other than in connection with the exercise of the
related Purchase Option, or in connection with a repurchase under Section 2.03
by the related Mortgage Loan Seller, or, with respect to a Serviced Whole Loan
or any Mortgage Loan or Serviced Whole Loan with a related mezzanine loan, the
exercise of the purchase option, if any, set forth in the related Co-Lender
Agreement or mezzanine intercreditor agreement, as applicable, by the holder of
the related B Loan or mezzanine lender. In connection with the foregoing, the
Special Servicer may charge prospective bidders, and may retain, fees that
approximate the Special Servicer's actual costs in the preparation and delivery
of information pertaining to such sales or evaluating bids without obligation to
deposit such amounts into the Collection Account or in the case of any Serviced
Whole Loan, the applicable Serviced Whole Loan Collection Account or the REO
Accounts.
(g) The Special Servicer shall use reasonable efforts to solicit
offers for each REO Property in such manner as will be reasonably likely to
realize a fair price within the time period provided for by Section 3.17(a). The
Special Servicer (with the consent of the Directing Certificateholder) shall
accept the first (and, if multiple bids are contemporaneously received, highest)
cash bid received from any Person that constitutes a fair price for such REO
Property. If the Special Servicer determines, in its good faith and reasonable
judgment, that it will be unable to realize a fair price for any REO Property
within the time constraints imposed by Section 3.17(a), then the Special
Servicer (with the consent of the Directing Certificateholder) shall dispose of
such REO Property upon such terms and conditions as the Special Servicer shall
deem necessary and desirable to maximize the recovery thereon under the
circumstances and, in connection therewith, shall accept the highest outstanding
cash bid, regardless of from whom received.
The Special Servicer shall give the Trustee, the Master Servicer and
the Directing Certificateholder, not less than ten Business Days' prior written
notice of its intention to sell any REO Property, and notwithstanding anything
to the contrary herein, neither the Trustee, in its individual capacity, nor any
of its Affiliates may bid for or purchase any REO Property pursuant hereto.
(h) Whether any cash bid constitutes a fair price for any REO
Property, as the case may be, for purposes of Section 3.18(g), shall be
determined by the Special Servicer, if the highest bidder is a Person other than
the Special Servicer or an Affiliate of the Special Servicer, and by the
Trustee, if the highest bidder is the Special Servicer or an Affiliate of the
Special Servicer; provided, however, that no bid from an Interested Person shall
constitute a fair price unless (i) it is the highest bid received and (ii) at
least two other bids are received from independent third parties. In determining
whether any offer received from an Interested Person represents a fair price for
any such REO Property, the Trustee shall be supplied with and shall rely on the
most recent appraisal or Updated Appraisal conducted in accordance with this
Agreement within the preceding 12-month period or in the absence of any such
appraisal, on a narrative appraisal prepared by an appraiser selected by the
Special Servicer if the Special Servicer or an Affiliate of the Special Servicer
is not making an offer with respect to an REO Property (or by the Master
Servicer if the Special Servicer is making such an offer). The cost of any such
narrative appraisal shall be covered by, and shall be reimbursable as, a
Property Advance. In determining whether any offer from a Person other than an
Interested Person constitutes a fair price for any such REO Property, the
Special Servicer shall take into account (in addition to the results of any
appraisal, updated appraisal or narrative appraisal that it may have obtained
pursuant to this Agreement within the prior 12 months), and in determining
whether any offer from an Interested Person constitutes a fair price for any
such REO Property, any appraiser shall be instructed to take into account, as
applicable, among other factors, the period and amount of the occupancy level
and physical condition of the Mortgaged Property or REO Property, the state of
the local economy and the obligation to dispose of any REO Property within the
time period specified in Section 3.17(a). The Repurchase Price (which, in
connection with the administration of an REO Property related to a Serviced
Whole Loan, shall be construed and calculated as if the loans in such Serviced
Whole Loan together constitute a single Mortgage Loan thereunder) for any REO
Property shall in all cases be deemed a fair price.
(i) Subject to subsections (g) and (h) above, the Special Servicer
shall act on behalf of the Trustee in negotiating and taking any other action
necessary or appropriate in connection with the sale of any REO Property, and
the applicable collection of all amounts payable in connection therewith. In
connection therewith, the Special Servicer may charge for its own account
prospective offerors, and may retain, fees that approximate the Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or exchanging offers without obligation to deposit such
amounts into the Collection Account or in the case of the Serviced Whole Loans,
the applicable Serviced Whole Loan Collection Account. Any sale of an REO
Property shall be final and without recourse to the Trustee or the Trust Fund
(except such recourse to the Trust Fund imposed by those representations and
warranties typically given in such transactions, any prorations applied thereto
and any customary closing matters), and if such sale is consummated in
accordance with the terms of this Agreement, none of the Special Servicer, the
Master Servicer, the Depositor or the Trustee shall have any liability to any
Certificateholder or Serviced Companion Loan Noteholder with respect to the
purchase price therefor accepted by the Special Servicer or the Trustee.
(j) Any sale of an REO Property shall be for cash only.
(k) Notwithstanding any of the foregoing paragraphs of this Section
3.18, the Special Servicer shall not be obligated to accept the highest cash
offer if the Special Servicer determines, in its reasonable and good faith
judgment, that rejection of such offer would be in the best interests of the
Certificateholders and, in the case of a Serviced Whole Loan, in the best
interests of the related Serviced Companion Loan Noteholders, as a collective
whole, and the Special Servicer may accept a lower cash offer (from any Person
other than itself or an Affiliate) if it determines, in its reasonable and good
faith judgment, 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) and, in the case of
any Serviced Whole Loan, in the best interests of the related Serviced Companion
Loan Noteholders, as a collective whole.
(l) Notwithstanding anything herein to the contrary, the Purchase
Option shall not apply to any Ala Moana Portfolio Companion Loan.
(m) With respect to any Serviced Whole Loan, upon the related
Mortgage Loan becoming a Defaulted Mortgage Loan and with respect to the
Spectrum Centre Mortgage Loan if an event of default enumerated in Section 8(a)
of the Spectrum Centre Intercreditor Agreement occurs, the Trustee shall
promptly notify, in writing, the holder of each related B Loan and Pari Passu
Companion Loan. The Purchase Option with respect to any Serviced Whole Loan
shall be subject to the purchase rights of the holder of the related B Loan in
accordance with the terms of and as set forth in the related Co-Lender
Agreement.
Section 3.19 Additional Obligations of The Master Servicer and
Special Servicer; Inspections. (a) The Master Servicer (at its own expense) (or,
with respect to Specially Serviced Loans and REO Properties, the Special
Servicer) shall inspect or cause to be inspected each Mortgaged Property
securing a Mortgage Loan that it is servicing at such times and in such manner
as is consistent with the Servicing Standard, but in any event shall inspect
each Mortgaged Property with an Allocated Loan Amount of (A) $2,000,000 or more
at least once every 12 months and (B) less than $2,000,000 at least once every
24 months, in each case commencing in 2007 (or at such decreased frequency as
each Rating Agency shall have confirmed in writing to the Master Servicer will
not result a downgrade, qualification or withdrawal of the then-current ratings
assigned to any Class of the Certificates or Companion Loan Securities);
provided, however, that if any Mortgage Loan or Serviced Whole Loan becomes a
Specially Serviced Loan, the Special Servicer is required to inspect or cause to
be inspected the related Mortgaged Property as soon as practicable but in no
event less than 60 days after the Mortgage Loan remains a Specially Serviced
Loan; provided, further, that a Master Servicer will not be required to inspect
a Mortgaged Property that has been inspected in the previous six months. The
reasonable cost of each such inspection performed by the Special Servicer will
be paid by the Master Servicer as a Property Advance or if such Property Advance
would not be recoverable, as an Additional Trust Fund Expense. The Master
Servicer or the Special Servicer, as applicable, will be required to prepare a
written report of the inspection describing, among other things, the condition
of and any damage to the Mortgaged Property securing a Mortgage Loan that it is
servicing and specifying the existence of any material vacancies in such
Mortgaged Property, any sale, transfer or abandonment of such Mortgaged Property
of which it has actual knowledge, any material adverse change in the condition
of the Mortgaged Property, or any visible material waste committed on applicable
Mortgaged Property. The Master Servicer or Special Servicer, as applicable,
shall send to the Rating Agencies and, upon request, to the Underwriters within
20 days of completion, each inspection report, unless the Rating Agencies, any
related Serviced Companion Loan Noteholders and, upon request, the Underwriters,
as applicable, notify the Master Servicer or Special Servicer, as applicable,
that it does not want such reports.
(b) With respect to each Mortgage Loan or Serviced Whole Loan, the
Master Servicer (or the Special Servicer, in the case of a Specially Serviced
Loan) shall enforce the Trustee's rights with respect to the Manager under the
related Loan Documents and Management Agreement, if any.
(c) With respect to any Mortgage Loan (other than a Specially
Serviced Loan) that has been subject to a Principal Prepayment and a Prepayment
Interest Shortfall (other than at the request of or with the consent of the
Controlling Class Representative), the Master Servicer shall deliver to the
Trustee on each Servicer Remittance Date for deposit in the Lower-Tier
Distribution Account, without any right of reimbursement therefor, a cash
payment (a "Servicer Prepayment Interest Shortfall"), in an amount equal to the
lesser of (x) the aggregate amount of Prepayment Interest Shortfalls incurred in
connection with Principal Prepayments received in respect of the Mortgage Loans
(other than a Specially Serviced Loan) during the related Collection Period, and
(y) the aggregate of (A) that portion of its Servicing Fees equal to a rate of
0.01% per annum that is being paid in such Collection Period with respect to the
Mortgage Loans (other than a Specially Serviced Loan) and (B) all Prepayment
Interest Excess received during the related Collection Period on the Mortgage
Loans (other than a Specially Serviced Loan); provided, however, that the rights
of the Certificateholders to offset of the aggregate Prepayment Interest
Shortfalls shall not be cumulative. Notwithstanding the foregoing, with respect
to any Prepayment Interest Shortfall on the 0000 Xxxxxx Xxxxxx Mortgage Loan as
a result of a mandatory prepayment caused by a purchase of the related Mortgaged
Property (or the ownership interest in the related Mortgage Loan Borrower) by
the 0000 Xxxxxx Xxxxxx Tenant during the period of March 22, 2015 through March
31, 2015, inclusive, the Master Servicer's obligation to pay Servicer Prepayment
Interest Shortfalls with respect to the 0000 Xxxxxx Xxxxxx Mortgage Loan shall
not be limited by, and shall be paid without regard to, the aggregate Servicing
Fees received by the Master Servicer during the applicable Collection Period..
Notwithstanding the previous sentence, if any Mortgage Loan (other than a
Specially Serviced Loan) has been subject to a Principal Prepayment and a
Prepayment Interest Shortfall other than (i) as a result of the payment of
insurance proceeds or condemnation proceeds, (ii) subsequent to a default under
the related Mortgage Loan Documents (provided that the Master Servicer at the
direction of the Special Servicer accepted such prepayment), (iii) pursuant to
applicable law or a court order or (iv) at the request or with the consent of
the Special Servicer or the Controlling Class Representative, the portion of the
Servicing Fee described in clause (A) of the preceding sentence shall be
construed to mean (x) the entire Servicing Fee paid in such Collection Period
with respect to the Mortgage Loans serviced by it (other than Specially Serviced
Loans) and (y) the amount of any net investment income earned by the Master
Servicer on the related Principal Prepayment while on deposit in the Collection
Account.
(d) The Master Servicer shall, as to each Mortgage Loan or Serviced
Whole Loan that is secured by the interest of the related Borrower under a
ground lease, promptly (and in any event within 60 days) after the Closing Date
notify the related ground lessor of the transfer of such Mortgage Loan or
Serviced Whole Loan to the Trust pursuant to this Agreement and inform such
ground lessor that any notices of default under the related Ground Lease should
thereafter be forwarded to the Master Servicer.
(e) The Master Servicer shall, to the extent consistent with the
Servicing Standard and permitted by the related Loan Documents, not apply any
funds with respect to a Mortgage Loan or Serviced Whole Loan (whether arising in
the form of a holdback, earnout reserve, cash trap or other similar feature) to
the prepayment of the related Mortgage Loan or Serviced Whole Loan prior to an
event of default or imminent event of default with respect to such Mortgage Loan
or Serviced Whole Loan. Prior to an event of default or imminent event of
default any such amounts described in the immediately preceding sentence shall
be held by the Master Servicer as additional collateral for the related Mortgage
Loan or Serviced Whole Loan.
Section 3.20 Authenticating Agent. The Trustee may appoint an
Authenticating Agent to execute and to authenticate Certificates. The
Authenticating Agent must be acceptable to the Depositor and must be a
corporation organized and doing business under the laws of the United States of
America or any state, having a principal office and place of business in a state
and city acceptable to the Depositor, having a combined capital and surplus of
at least $15,000,000, authorized under such laws to do a trust business and
subject to supervision or examination by federal or state authorities. The
Trustee shall serve as the initial Authenticating Agent and the Trustee hereby
accepts such appointment.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least
30 days' advance written notice of resignation to the Trustee, the Depositor and
the Master Servicer. The Trustee may at any time terminate the agency of the
Authenticating Agent by giving written notice of termination to the
Authenticating Agent, the Depositor and the Master Servicer. Upon receiving a
notice of resignation or upon such a termination, or in case at any time the
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 3.20, the Trustee may appoint a successor
Authenticating Agent, which shall be acceptable to the Master Servicer and the
Depositor, and shall mail notice of such appointment to all Certificateholders.
Any successor Authenticating Agent 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
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 3.20.
The Authenticating Agent shall have no responsibility or liability
for any action taken by it as such at the direction of the Trustee. Any
compensation paid to the Authenticating Agent shall be an unreimbursable expense
of the Trustee.
Section 3.21 Appointment of Custodians. The Trustee shall be the
initial Custodian hereunder. The Trustee may appoint one or more Custodians to
hold all or a portion of the Mortgage Files on behalf of the Trustee and
otherwise perform the duties set forth in Article II, by entering into a
Custodial Agreement with any Custodian who is not the Trustee or the Depositor.
The Trustee agrees to comply with the terms of each Custodial Agreement and to
enforce the terms and provisions thereof against the Custodian for the benefit
of the Certificateholders. The Trustee shall not be liable for any act or
omission of the Custodian under the Custodial Agreement. Each Custodian shall be
a depository institution subject to supervision by federal or state authority,
shall have a combined capital and surplus of at least $10,000,000, shall have a
long-term debt rating of at least "BBB" from S&P and "Baa" from Xxxxx'x and
shall be qualified to do business in the jurisdiction in which it holds any
Mortgage File. Each Custodial Agreement may be amended only as provided in
Section 11.07. Any compensation paid to the Custodian shall be an unreimbursable
expense of the Trustee. If the Custodian is an entity other than the Trustee,
the Custodian shall maintain a fidelity bond in the form and amount that are
customary for securitizations similar to the securitization evidenced by this
Agreement. The Custodian shall be deemed to have complied with this provision if
one of its Affiliates has such fidelity bond coverage and, by the terms of such
fidelity bond, the coverage afforded thereunder extends to the Custodian. In
addition, the Custodian shall keep in force during the term of this Agreement a
policy or policies of insurance covering loss occasioned by the errors and
omissions of its officers and employees in connection with its obligations
hereunder in the form and amount that are customary for securitizations similar
to the securitization evidenced by this Agreement. All fidelity bonds and
policies of errors and omissions insurance obtained under this Section 3.21
shall be issued by a Qualified Insurer.
Section 3.22 [Reserved].
Section 3.23 Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts. The Master Servicer shall administer each
Lock-Box Account, Cash Collateral Account, Escrow Account and Reserve Account in
accordance with the related Mortgage or Loan Agreement, Cash Collateral Account
Agreement or Lock-Box Agreement, if any relating to the Mortgage Loans it is
servicing.
Section 3.24 Property Advances. (a) The Master Servicer (or, to the
extent provided in Section 3.24(c), the Trustee) to the extent specifically
provided for in this Agreement, shall make any Property Advances as and to the
extent otherwise required pursuant to the terms hereof with respect to the
Mortgage Loans or Serviced Whole Loans that it is servicing. For purposes of
distributions to Certificateholders and compensation to the Master Servicer, the
Special Servicer or the Trustee, Property Advances shall not be considered to
increase the Stated Principal Balance of any Mortgage Loan, notwithstanding that
the terms of such Mortgage Loan so provide.
(b) Notwithstanding anything in this Agreement to the contrary, the
Special Servicer shall give the Master Servicer not less than five Business
Days' written notice with respect to any Property Advance to be made on any
Specially Serviced Loan, before the date on which the Master Servicer is
required to make such Property Advance with respect to such Specially Serviced
Loan or REO Loan; provided, however, that the Special Servicer shall be required
to provide the Master Servicer with only two Business Days' written notice in
respect of Property Advances required to be made on an urgent or emergency basis
(which may include, without limitation, Property Advances required to make tax
or insurance payments). In addition, in the event that the Property Advance must
be made sooner than the two Business Days referred to in the previous sentence,
the Special Servicer may make such Property Advances on an emergency basis with
respect to any Specially Serviced Loan or REO Loan.
(c) The Master Servicer shall notify the Trustee in writing promptly
upon, and in any event within one Business Day after, becoming aware that it
will be unable to make any Property Advance required to be made pursuant to the
terms hereof, and in connection therewith, shall set forth in such notice the
amount of such Property Advance, the Person to whom it is to be paid, and the
circumstances and purpose of such Property Advance, and shall set forth therein
information and instructions for the payment of such Property Advance, and, on
the date specified in such notice for the payment of such Property Advance, or,
if the date for payment has passed or if no such date is specified, then within
five Business Days following such notice, the Trustee, subject to the provisions
of Section 3.24(d), shall pay the amount of such Property Advance in accordance
with such information and instructions.
(d) The Special Servicer shall promptly furnish any party required
to make Property Advances hereunder with any information in its possession
regarding the Specially Serviced Loans and REO Properties as such party required
to make Property Advances may reasonably request for purposes of making
recoverability determinations. Any request by the Special Servicer that the
Master Servicer make a Property Advance shall be deemed to be a determination by
the Special Servicer that such requested Property Advance is not a
Nonrecoverable Property Advance.
Notwithstanding anything herein to the contrary, no Property Advance
shall be required hereunder if the Person otherwise required to make such
Property Advance determines that such Property Advance would, if made,
constitute a Nonrecoverable Property Advance. In addition, a Master Servicer
shall not make any Property Advance to the extent that it has received written
notice that the Special Servicer has determined that such Property Advance
would, if made, constitute a Nonrecoverable Property Advance. In making such
recoverability determination, such Person will be entitled to (i) give due
regard to the existence of any Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount with respect to other Mortgage Loans, the recovery of
which, at the time of such consideration, is being deferred or delayed by the
Master Servicer, the Special Servicer or the Trustee, as applicable, in light of
the fact that proceeds on the related Mortgage Loan are a source of recovery not
only for the Property Advance under consideration, but also as a potential
source of recovery of such Nonrecoverable Advance or Workout-Delayed
Reimbursement Amount which is being or may be deferred or delayed and (ii)
consider (among other things) the obligations of the Borrower under the terms of
the related Mortgage Loan (or the related Serviced Whole Loan, as applicable) as
it may have been modified, (iii) 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
applicable Servicing Standard in the case of the Master Servicer or the Special
Servicer) regarding the possibility and effects of future adverse changes with
respect to such Mortgaged Properties, (iv) estimate and consider (among other
things) future expenses (consistent with the Servicing Standard in the case of
the Master Servicer or the Special Servicer) and (v) estimate and consider
(among other things) the timing of recoveries.
The Master Servicer, the Special Servicer and the Trustee, as
applicable, shall consider Unliquidated Advances in respect of prior Property
Advances for purposes of nonrecoverability determinations as if such
Unliquidated Advances were unreimbursed Property Advances. If an Appraisal of
the related Mortgaged Property shall not have been obtained within the prior 12
month period (and the Master Servicer and the Trustee shall each request any
such appraisal from the Special Servicer prior to ordering an Appraisal pursuant
to this sentence) or if such an Appraisal shall have been obtained but as a
result of unforeseen occurrences, such Appraisal does not, in the good faith
determination of the Master Servicer, the Special Servicer or the Trustee,
reflect current market conditions, and the Master Servicer or the Trustee, as
applicable, and the Special Servicer cannot agree on the appropriate downward
adjustment to such Appraisal, the Master Servicer, the Special Servicer or the
Trustee, as the case may be, may, subject to its reasonable and good faith
determination that such Appraisal will demonstrate the nonrecoverability of the
related Advance, obtain an Appraisal for such purpose at the expense of the
Trust Fund (and, in the case of any Serviced Whole Loan, first of the related
Serviced B Loan Noteholders, if any, and second, to the extent such expense
remains unpaid, of the Mortgage Loan (or in the case of a Serviced Whole Loan
with a Pari Passu Companion Loan, to the holders of the related Mortgage Loan
and the Pari Passu Companion Loan on pro rata basis in accordance with their
outstanding principal balances).
Any determination by a Master Servicer, the Special Servicer or the
Trustee that it has made a Nonrecoverable Property Advance or that any proposed
Property Advance, if made, would constitute a Nonrecoverable Property Advance
shall be evidenced in the case of the Master Servicer or the Special Servicer by
a certificate of a Servicing Officer delivered to the other, to the other Master
Servicer, to the Trustee and the Depositor and, in the case of the Trustee, by a
certificate of a Responsible Officer of the Trustee, delivered to the Depositor,
the Master Servicer and the Special Servicer, which in each case sets forth such
nonrecoverability determination and the considerations of the Master Servicer,
the Special Servicer or the Trustee, as applicable, forming the basis of such
determination (such certificate accompanied by, to the extent available, income
and expense statements, rent rolls, occupancy status, property inspections and
other information used by the Master Servicer, the Special Servicer or the
Trustee, as applicable, to make such determination, together with any existing
Appraisal or any Updated Appraisal); provided, however, that the Special
Servicer may, at its option, make a determination in accordance with the
Servicing Standard, that any Property Advance previously made or proposed to be
made is nonrecoverable and shall deliver to the Master Servicer and the Trustee
notice of such determination. Any such determination shall be conclusive and
binding on the Master Servicer, the Special Servicer and the Trustee.
Any such Person may update or change its recoverability
determinations at any time (but not reverse any other Person's determination
that a Property Advance is a Nonrecoverable Advance) and (consistent with the
applicable Servicing Standard in the case of the Master Servicer or the Special
Servicer) may obtain, at the expense of the Trust (and, in the case of any
Serviced Whole Loan, first of the related Serviced B Loan Noteholders, if any,
and second, to the extent such expense remains unpaid, of the Trust Fund (or in
the case of a Serviced Whole Loan with a Pari Passu Companion Loan, to the
holders related Mortgage Loan and Pari Passu Companion Loan on a pro rata basis
in accordance with their outstanding principal balances)), any analysis,
Appraisals or market value estimates or other information for such purposes.
Absent bad faith, any such determination as to the recoverability of any
Property Advance shall be conclusive and binding on the Certificateholders and
the Serviced Companion Loan Noteholders.
Notwithstanding the above, (i) the Trustee shall be entitled to rely
conclusively on any determination by the Master Servicer or the Special
Servicer, as applicable, that a Property Advance, if made, would be a
Nonrecoverable Property Advance and (ii) the Master Servicer will be entitled to
rely conclusively on any nonrecoverability determination of the Special
Servicer. The Trustee, in determining whether or not a Property Advance
previously made is, or a proposed Property Advance, if made, would be, a
Nonrecoverable Property Advance shall be subject to the standards applicable to
the Master Servicer hereunder.
With respect to the payment of insurance premiums and delinquent tax
assessments, in the event that a Master Servicer determines that a Property
Advance of such amounts would constitute a Nonrecoverable Advance, the Master
Servicer shall deliver notice of such determination to the Trustee and the
Special Servicer. Upon receipt of such notice, the Special Servicer shall
determine (with the reasonable assistance of the Master Servicer) whether the
payment of such amount (i) is necessary to preserve the related Mortgaged
Property and (ii) would be in the best interests of the Certificateholders and,
in the case of any Serviced Companion Loans, the related Serviced Companion Loan
Noteholders, as a collective whole. If the Special Servicer determines that the
payment of such amount (i) is necessary to preserve the related Mortgaged
Property and (ii) would be in the best interests of the Certificateholders and,
in the case of any Serviced Companion Loans, the related Serviced Companion Loan
Noteholders, the Special Servicer shall direct the Master Servicer in writing to
make such payment and the Master Servicer shall make such payment, to the extent
of available funds, from amounts in its Collection Account or, if a Serviced
Whole Loan is involved, from amounts in the applicable Serviced Whole Loan
Collection Account.
Notwithstanding anything to the contrary contained in this Section
3.24, a Master Servicer may elect (but shall not be required) to make a payment
out of its Collection Account to pay for certain expenses specified in this
sentence notwithstanding that the Master Servicer has determined that a Property
Advance with respect to such expenditure would be a Nonrecoverable Property
Advance (unless, with respect to Specially Serviced Loans or REO Loans, the
Special Servicer has notified the 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, the
Master Servicer determines in accordance with the Servicing Standard (as
evidenced by a certificate of a Servicing Officer delivered to the Trustee) that
making such expenditure is in the best interests of the Certificateholders (and,
in the case of a Serviced Whole Loan, the related Serviced Companion Loan
Noteholders), all as a collective whole. The Master Servicer may elect to obtain
reimbursement of Nonrecoverable Property Advances from the Trust Fund in
accordance with Section 3.06.
(e) The Master Servicer, the Special Servicer and/or the Trustee, as
applicable, shall be entitled to the reimbursement of Property Advances made by
any of them to the extent permitted pursuant to Section 3.06, if applicable, of
this Agreement, together with any related Advance Interest Amount in respect of
such Property Advances, and the Master Servicer, the Special Servicer and the
Trustee each hereby covenants and agrees to promptly seek and effect the
reimbursement of such Property Advances from the related Borrowers to the extent
permitted by applicable law and the related Loan Documents.
Section 3.25 Appointment of Special Servicer. (a) X.X. Xxxxxx
Company, Inc. is hereby appointed as the initial Special Servicer to service
each Specially Serviced Loan (other than the ShopKo Portfolio Mortgage Loan if
it becomes a Specially Serviced Loan).
With respect to the ShopKo Portfolio Mortgage Loan, the CGMCT
2006-C4 Special Servicer will specially service such Mortgage Loan under and in
accordance with the CGMCT 2006-C4 Pooling and Servicing Agreement.
(b) The Directing Certificateholder (other than the Directing
Certificateholder with respect to the Fair Lakes Office Portfolio Whole Loan)
shall be entitled to remove (at its own expense if such removal is without
cause) the Special Servicer with or without cause and to appoint a successor
Special Servicer with respect to all of the Specially Serviced Loans (including
each Specially Serviced Loan that is a Serviced Whole Loan); provided, that in
the event that the Directing Certificateholder is not the Controlling Class
Representative, such Directing Certificateholder may only terminate and appoint
a replacement Special Servicer with respect to the applicable Serviced Whole
Loan. With respect to the Fair Lakes Office Portfolio Whole Loan, the
Controlling Class Representative, and not the Directing Certificateholder, shall
have the right to remove the Special Servicer with respect to such Whole Loan.
If there is a Special Servicer Event of Default, the Special Servicer shall be
removed and replaced pursuant to Sections 7.01(c) and 7.02. The Trustee shall,
promptly after receiving any such removal notice, so notify each Rating Agency.
If the replacement designated in such notice is consented to by the Trustee
(such consent not to be unreasonably withheld), the termination of the Special
Servicer and appointment of a successor Special Servicer pursuant to this
Section 3.25(b) shall not be effective until (i) each Rating Agency confirms to
the Trustee in writing that such appointment, in and of itself, would not cause
a downgrade, qualification or withdrawal of the then-current ratings assigned to
any Class of Certificates or any class of Companion Loan Securities, (ii) the
successor special servicer has assumed all of its responsibilities, duties and
liabilities hereunder pursuant to a writing reasonably satisfactory to the
Trustee and (iii) receipt by the Trustee of an Opinion of Counsel to the effect
that (x) the designation of such replacement to serve as Special Servicer is in
compliance with this Agreement, (y) such replacement will be bound by the terms
of this Agreement and (z) this Agreement will be enforceable against such
replacement in accordance with its terms. Any successor Special Servicer shall
make the representations and warranties provided for in Section 2.04(b) mutatis
mutandis. In addition, any replacement Special Servicer that will service any
Serviced Whole Loan shall meet any requirements specified in the related
Co-Lender Agreement.
The existing Special Servicer shall be deemed to have been removed
simultaneously with such designated Person's becoming the Special Servicer
hereunder; provided, however, that the Special Servicer removed pursuant to this
Section shall be entitled to receive, and shall have received, all amounts
accrued or owing to it under this Agreement on or prior to the effective date of
such resignation and it shall continue to be entitled to any rights that accrued
prior to the date of such resignation (including the right to receive all fees,
expenses and other amounts accrued or owing to it under this Agreement, plus
interest at the Advance Rate with respect to any unpaid Property Advances made
by such Special Servicer with respect to periods prior to the date of such
removal and the right to receive any Workout Fee specified in Section 3.12(c) in
the event that the Special Servicer is terminated and any indemnification rights
that the Special Servicer is entitled to pursuant to Section 6.03(a))
notwithstanding any such removal. Such removed Special Servicer shall cooperate
with the Trustee and the replacement Special Servicer in effecting the
termination of the resigning Special Servicer's responsibilities and rights
hereunder, including without limitation the transfer within two Business Days to
the successor Special Servicer for administration by it of all cash amounts that
are thereafter received with respect to the Mortgage Loans.
(c) The appointment of any such successor Special Servicer shall not
relieve the Master Servicer or the Trustee of their respective obligations to
make Advances as set forth herein; provided, however, the Master Servicer shall
not be liable for any actions or any inaction of such successor Special
Servicer. Any termination fee payable to the terminated Special Servicer (and it
is acknowledged that there is no such fee payable in the event of a termination
for breach of this Agreement) shall be paid by the Certificateholders or the
Directing Certificateholder, as applicable, so terminating the Special Servicer
and shall not in any event be an expense of the Trust Fund or any Serviced
Companion Loan Noteholder (unless such Serviced Companion Loan Noteholder is the
Directing Certificateholder).
Section 3.26 Transfer of Servicing Between the Master Servicer and
the Special Servicer; Record Keeping; Asset Status Report. (a) Upon the
occurrence of any event specified in the definition of Specially Serviced Loan
with respect to any Mortgage Loan or Serviced Whole Loan of which the Master
Servicer has notice, the Master Servicer shall promptly give notice thereof to
the Special Servicer, the Trustee, the related Mortgage Loan Seller, the
Controlling Class Certificateholders and, if applicable, the related Serviced
Companion Loan Noteholders and shall use commercially reasonable efforts to
provide the Special Servicer with all information, documents (but excluding the
original documents constituting the Mortgage File) and records (including
records stored electronically on computer tapes, magnetic discs and the like)
relating to such Mortgage Loan or Serviced Whole Loan, as applicable, and
reasonably requested by the Special Servicer to enable it to assume its duties
hereunder with respect thereto without acting through a sub-servicer. The Master
Servicer shall use commercially reasonable efforts to comply with the preceding
sentence within five Business Days of the date it has notice of the occurrence
of any event specified in the definition of Specially Serviced Loan with respect
to any Serviced Whole Loan but shall continue to act as Master Servicer and
administrator of such Mortgage Loan or Serviced Whole Loan until the Special
Servicer has commenced the servicing of such Mortgage Loan or Serviced Whole
Loan, which shall occur upon the receipt by the Special Servicer of the
information, documents and records referred to in the preceding sentence. With
respect to each Mortgage Loan or Serviced Whole Loan that becomes a Specially
Serviced Loan, the Master Servicer shall instruct the related Borrower to
continue to remit all payments in respect of such Mortgage Loan or Serviced
Whole Loan to the Master Servicer. The Master Servicer shall forward any notices
it would otherwise send to the Borrower of a Specially Serviced Loan to the
Special Servicer who shall send such notice to the related Borrower.
Upon determining that a Specially Serviced Loan has become a
Corrected Mortgage Loan, the Special Servicer shall immediately give notice
thereof to the Master Servicer, and upon giving such notice, such Mortgage Loan
or Serviced Whole Loan shall cease to be a Specially Serviced Loan in accordance
with the first proviso of the definition of Specially Serviced Loan, the Special
Servicer's obligation to service such Mortgage Loan or Serviced Whole Loan shall
terminate and the obligations of the Master Servicer to service and administer
such Mortgage Loan or Serviced Whole Loan as a Mortgage Loan or Serviced Whole
Loan that is not a Specially Serviced Loan shall resume.
(b) In servicing any Specially Serviced Loan, the Special Servicer
shall provide to the Custodian originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (to the
extent such documents are in the possession of the Special Servicer) and copies
of any additional related Mortgage Loan information, including correspondence
with the related Borrower, and the Special Servicer shall promptly provide
copies of all of the foregoing to the Master Servicer as well as copies of any
analysis or internal review prepared by or for the benefit of the Special
Servicer.
(c) Not later than two Business Days preceding each date on which
the Master Servicer is required to furnish a report under Section 3.13(a) to the
Trustee, the Special Servicer shall deliver to the Trustee, with a copy to the
Master Servicer, a written statement describing, on a loan by loan basis, (i)
the amount of all payments on account of interest received on each Specially
Serviced Loan, the amount of all payments on account of principal, including
Principal Prepayments, on each Specially Serviced Loan, the amount of Net
Insurance Proceeds and Net Liquidation Proceeds received with respect to each
Specially Serviced Loan, and the amount of net income or net loss, as determined
from 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 rental income
that does not constitute Rents from Real Property with respect to the REO
Property relating to each applicable Specially Serviced Loan, in each case in
accordance with Section 3.17 (it being understood and agreed that to the extent
this information is provided in accordance with Section 3.13(f), this Section
3.26(c) shall be deemed to be satisfied) and (ii) such additional information
relating to the Specially Serviced Loans as the Master Servicer or the Trustee
reasonably request, to enable it to perform its duties under this Agreement.
Such statement and information shall be furnished to the Master Servicer in
writing and/or in such electronic media as is acceptable to the Master Servicer.
(d) Notwithstanding the provisions of the preceding Section 3.26(c),
the Master Servicer shall maintain ongoing payment records with respect to each
of the Specially Serviced Loans relating to a Mortgage Loan that it is servicing
and shall provide the Special Servicer with any information reasonably required
by the Special Servicer to perform its duties under this Agreement. The Special
Servicer shall provide the Master Servicer with any information reasonably
required by the Master Servicer to perform its duties under this Agreement.
(e) [Reserved.]
(f) No later than 30 days after a Mortgage Loan or a Serviced Whole
Loan becomes a Specially Serviced Loan, the Special Servicer shall deliver to
each Rating Agency, the Master Servicer, the Controlling Class Representative,
each related Serviced Companion Loan Noteholder, and upon request, the
Underwriters, a report (the "Asset Status Report") with respect to such Mortgage
Loan or Serviced Whole Loan and the related Mortgaged Property; provided,
however, the Special Servicer shall not be required to deliver an Asset Status
Report to the Controlling Class Representative if the Special Servicer and the
Controlling Class Representative are the same entity. Such Asset Status Report
shall set forth the following information to the extent reasonably determinable:
(i) date of transfer of servicing of such Mortgage Loan or Serviced
Whole Loan to the Special Servicer;
(ii) summary of the status of such Specially Serviced Loan and any
negotiations with the related Borrower;
(iii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standard, 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 or Serviced Whole Loan and whether outside legal
counsel has been retained;
(iv) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(v) the Special Servicer's recommendations on how such Specially
Serviced Loan might be returned to performing status (including the
modification of a monetary term, and any work-out, restructure or debt
forgiveness) and returned to the Master Servicer for regular servicing or
foreclosed or otherwise realized upon (including any proposed sale of a
Defaulted Mortgage Loan or REO Property);
(vi) a copy of the last obtained Appraisal of the Mortgaged
Property; and
(vii) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
If within 10 Business Days of receiving an Asset Status Report, the
Controlling Class Representative (subject to Section 3.31 or 3.34, as
applicable) 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 such Special Servicer may not take any action
that is contrary to applicable law, this Agreement, the Servicing Standard
(taking into consideration the best interests of all the Certificateholders and,
with respect to any Serviced Whole Loan, the related Serviced Companion Loan
Noteholders, as a collective whole) or the terms of the applicable Loan
Documents. If the Controlling Class Representative disapproves such Asset Status
Report within such 10 Business Day period, the Special Servicer will revise such
Asset Status Report and deliver to the Controlling Class Representative, each
related Serviced Companion Loan Noteholder, the Rating Agencies and the Master
Servicer a new Asset Status Report as soon as practicable, but in no event later
than 30 Business Days after such disapproval. The Special Servicer shall revise
such Asset Status Report as described above in this Section 3.26(f) until the
Controlling Class Representative fails to disapprove such revised Asset Status
Report in writing within 10 Business Days of receiving such revised Asset Status
Report or until the Special Servicer makes a determination consistent with the
Servicing Standard, that such objection is not in the best interests of all the
Certificateholders and the related Serviced Companion Loan Noteholders, if
applicable, as a collective whole. In any event, if the Controlling Class
Representative does not approve an Asset Status Report within 60 Business Days
from the first submission of an Asset Status Report, the Special Servicer may
act upon the most recently submitted form of Asset Status Report where required
to comply with the Servicing Standard. 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, and in particular, shall modify
and resubmit such Asset Status Report to the Controlling Class Representative
(with a copy to the Trustee) if (i) the estimated sales proceeds, foreclosure
proceeds, work-out or restructure terms or anticipated debt forgiveness varies
materially from the amount on which the original report was based or (ii) the
related Borrower becomes the subject of bankruptcy proceedings. 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 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 and, if any Serviced Whole Loan is involved, the
related Serviced Companion Loan Noteholders, as a collective whole, and it has
made a reasonable effort to contact the Controlling Class Representative and, if
any Serviced Whole Loan is involved, the related Serviced Companion Loan
Noteholders and (ii) in any case, shall determine whether such affirmative
disapproval is not in the best interests of all the Certificateholders and, if
any Serviced Whole Loan is involved, the related Serviced Companion Loan
Noteholders (as a collective whole) pursuant to the Servicing Standard, and,
upon making such determination, shall implement the recommended action outlined
in the Asset Status Report. The Asset Status Report is not intended to replace
or satisfy any specific consent or approval right which the Controlling Class
Representative may have. Notwithstanding the foregoing, with respect to any
Serviced Whole Loan for which the related Co-Lender provides for the delivery of
an Asset Status Report, the Directing Certificateholder (excluding, in the case
of the Spectrum Centre Whole Loan, the holder of the related Spectrum Centre B
Loan) shall be entitled to a comparable asset status report and the related
approval rights (and the Controlling Class Representative shall not have any
approval rights with respect to the Asset Status Report except as Directing
Certificateholder), but the procedure and timing for approval by the Directing
Certificateholder of the related asset status report shall be governed by the
terms set forth in Section 3.31 as applicable to the related Serviced Whole
Loan; provided, that if the related Co-Lender Agreement does not provide for the
delivery of an Asset Status Report, the Asset Status Report specified above
shall be delivered to the Directing Certificateholder and the Directing
Certificateholder will have the time period specified above to approve or
disapprove of any action set forth therein.
The Special Servicer shall have the authority to meet with the
Borrower for any Specially Serviced Loan and take such actions consistent with
the Servicing Standard 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 Standard, this Agreement, applicable law or the related Loan
Documents.
No direction of the Directing Certificateholder shall (a) require,
permit or cause the Special Servicer to violate the terms of a Specially
Serviced Loan, applicable law or any provision of this Agreement, including, but
not limited to, Section 3.09, Section 3.18, Section 3.20 and Section 3.29 and
the Special Servicer's obligation to act in accordance with the Servicing
Standard and to maintain the REMIC status of the Lower-Tier REMIC and the
Upper-Tier REMIC, or (b) result in the imposition of a "prohibited transaction"
or "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 or their respective officers, directors, employees or
agents to any material claim, suit or liability or (d) materially expand the
scope of the Special Servicer's, Trustee's or either Master Servicer's
responsibilities under this Agreement. The Special Servicer shall not be
required to follow any direction of the Directing Certificateholder that would
have any of the effects described in clauses (a)-(d) of this paragraph.
Section 3.27 [Reserved].
Section 3.28 Limitations on and Authorizations of the Master
Servicer and Special Servicer with Respect to Certain Mortgage Loans. (a) Prior
to taking any action with respect to a Mortgage Loan or a Serviced Whole Loan
secured by Mortgaged Properties located in a "one-action" state, the Master
Servicer or Special Servicer, as applicable, shall consult with legal counsel,
the fees and expenses of which shall be an expense of the Trust Fund (and, in
the case of any Serviced Whole Loan, first of the related Serviced B Loan
Noteholders, if any, and second, to the extent such expense remains unpaid, from
the applicable Serviced Whole Loan Collection Account from amounts allocable to
the related Mortgage Loan).
(b) The Master Servicer shall send written notice to each Borrower
and the related Manager relating to a Mortgage Loan that it is servicing that,
if applicable, it and/or the Trustee has been appointed as the "Designee" of the
"Lender" under any related Lock-Box Agreement.
(c) [Reserved.]
(d) The Master Servicer (together with its employees, officer and
directors) shall not utilize the proprietary and nonpublic information that it
becomes aware of in servicing the Mortgage Loans to render advice in connection
with, solicit, or otherwise participate in the refinancing of any Mortgage Loans
or Serviced Whole Loans (whether at maturity or otherwise, unless the related
Mortgage Loan Seller confirms in writing that it will not pursue the refinancing
of such Mortgaged Property). Neither a Master Servicer nor the Special Servicer
shall make its mortgage loan servicing system available to the Master Servicer's
or the Special Servicer's affiliates engaged in the commercial mortgage
origination business for the purpose of soliciting additional lending business.
(e) Without limiting the obligations of the Master Servicer
hereunder with respect to the enforcement of a Borrower's obligations under the
related Loan Documents, the Master Servicer agrees that it shall, in accordance
with the Servicing Standard, enforce the provisions of the Loan Documents
relating to the Mortgage Loans that it is servicing with respect to the
collection of Prepayment Premiums and Yield Maintenance Charges.
(f) In the event that a Rating Agency shall charge a fee in
connection with providing confirmation hereunder that a proposed action will not
result in the downgrade, withdrawal, or qualification of any rating assigned to
any Class of Certificates, the Master Servicer shall require the related
Borrower to pay such fee to the full extent permitted under the applicable Loan
Documents or, if the related Borrower is not required to pay such fee pursuant
to the applicable Loan Documents, the Master Servicer will use best efforts to
collect such fees from the related Borrower. In the event that such fee remains
unpaid, such fee shall be an expense of the Trust Fund (allocated as an
Additional Trust Fund Expense in the same manner as Realized Losses as set forth
in Section 4.01(f)), the costs of which may be advanced as a Property Advance.
(g) The Master Servicer shall, in accordance with the Servicing
Standard, enforce the right of the Trust to recover any amounts owed by the
Serviced Companion Loan Noteholders to the Trust Fund pursuant to the related
Co-Lender Agreement (but in the case of any Serviced B Loan, subject to Section
1.03). The cost of such enforcement on behalf of the Trust shall be paid and
reimbursable as a Property Advance.
(h) With respect to a Mortgage Loan or Serviced Whole Loan with a
Stated Principal Balance equal to or greater than $20,000,000 to the extent not
inconsistent with the related Mortgage Loan or Serviced Whole Loan, a Master
Servicer shall not consent to a change of franchise affiliation with respect to
a Mortgaged Property or the property manager with respect to a Mortgaged
Property unless the Master Servicer obtains written confirmation from Xxxxx'x
and S&P that such consent would not, in and of itself, result in a downgrade,
qualification or withdrawal of the then-current ratings assigned to the
Certificates.
Section 3.29 Certain Rights and Obligations of the Special Servicer.
(a) In addition to its rights and obligations with respect to Specially Serviced
Loans, the Special Servicer has the right to approve any modification, whether
or not the applicable Mortgage Loan is a Specially Serviced Loan, to the extent
described under Section 3.30 (subject to Sections 3.31 or 3.34, as applicable)
and to approve any waivers of due-on-sale or due-on-encumbrance clauses as
described above under Section 3.09, whether or not the applicable Mortgage Loan
is a Specially Serviced Loan. With respect to non Specially Serviced Loans, the
Master Servicer shall notify the Special Servicer of any request for approval (a
"Request for Approval") received relating to the Special Servicer's
above-referenced approval rights and forward to the Special Servicer its written
recommendation, analysis and any other information or documents reasonably
requested by the Special Servicer (to the extent such information or documents
are in each the Master Servicer's possession). The Special Servicer shall have
10 Business Days (from the date that the Special Servicer receives the
information it requested from the Master Servicer) to analyze and make a
recommendation with respect to a Request for Approval with respect to a non
Specially Serviced Loan and, immediately following such 10 Business Day period,
is required to notify the Controlling Class Representative of such Request for
Approval and its recommendation with respect thereto. Following such notice, the
Controlling Class Representative shall have five Business Days from the date it
receives the Special Servicer recommendation and any other information it may
reasonably request (or, with respect to any Serviced Whole Loan, such longer
time period as may be provided in the related Co-Lender Agreement) to approve
any recommendation of the Special Servicer relating to any Request for Approval.
In any event, if the Controlling Class Representative does not respond to a
Request for Approval within the required 5 Business Days, the Special Servicer
may deem its recommendation approved by the Controlling Class Representative and
if the Special Servicer does not respond to a Request for Approval within the
required 15 Business Days, the Master Servicer may deem its recommendation
approved by the Special Servicer. With respect to a Specially Serviced Loan, the
Special Servicer must notify the Controlling Class Representative of any Request
for Approval received relating to the Controlling Class Representative's
above-referenced approval rights and its recommendation with respect thereto.
The Controlling Class Representative shall have 10 Business Days (after receipt
of all information reasonably requested) to approve any recommendation of the
Special Servicer relating to any such Request for Approval. In any event, if the
Controlling Class Representative does not respond to any such Request for
Approval within the required 10 Business Days, the Special Servicer may deem its
recommendation approved by the Controlling Class Representative. Notwithstanding
the foregoing, (i) with respect to any Serviced Whole Loan, the Directing
Certificateholder shall be entitled to a Request for Approval in lieu of the
Controlling Class Representative, but the procedure and timing for approval by
the Directing Certificateholder of the related Request for Approval shall be
governed by the terms set forth in the related Intercreditor Agreement and (ii)
if the Special Servicer determines that immediate action is necessary to protect
the interests of the Certificateholders (as a collective whole) it need not wait
for a response from the Controlling Class Representative or Directing
Certificateholder, as applicable.
(b) Neither the Master Servicer nor the Special Servicer shall be
required to take or refrain from taking any action pursuant to instructions from
the Directing Certificateholder that would cause any one of them to violate
applicable law, this Agreement, including the Servicing Standard, or the REMIC
Provisions.
(c) The Master Servicer and the Special Servicer, as applicable,
shall discuss with the Controlling Class Representative, on a monthly basis, the
performance of any Mortgage Loan or Serviced Whole Loan that is a Specially
Serviced Loan, which is delinquent, has been placed on a "Watch List" or has
been identified by the Master Servicer or Special Servicer as exhibiting
deteriorating performance.
Section 3.30 Modification, Waiver, Amendment and Consents. (a)
Subject to Sections 3.29, 3.30(n), 3.31, 3.32 and 3.34, the Master Servicer or
the Special Servicer, as applicable, may agree to any modification, waiver or
amendment of any term of, forgive or defer interest on and principal of,
capitalize interest on, permit the release, addition or substitution of
collateral securing any Mortgage Loan and/or permit the release of the Borrower
on or any guarantor of any Mortgage Loan and/or permit any change in the
management company or franchise with respect to any Mortgaged Property without
the consent of the Trustee, any Certificateholder (other than the Directing
Certificateholder), to the extent provided in Section 3.26, subject, however, to
each of the following limitations, conditions and restrictions:
(i) other than as provided in Sections 3.03 and 3.09 and except with
respect to any Penalty Charges that the Master Servicer or Special
Servicer, as applicable, may be entitled to as additional compensation
under this Agreement, neither the Master Servicer nor the Special Servicer
shall agree to any modification, waiver or amendment of any term of, or
take any of the other acts referenced in this Section 3.30(a) (and, with
respect to the Serviced Whole Loans, Section 3.31, 3.32 or 3.34, as
applicable) with respect to, any Mortgage Loan or Serviced Whole Loan, as
applicable, that would affect the amount or timing of any related payment
of principal, interest or other amount payable thereunder or, in the
Master Servicer's or the Special Servicer's, as applicable, good faith and
reasonable judgment, in accordance with the Servicing Standard, materially
impair the security for such Mortgage Loan or Serviced Whole Loan, as
applicable, or reduce the likelihood of timely payment of amounts due
thereon or materially alter, substitute or increase the security for such
Mortgage Loan or Serviced Whole Loan, as applicable (other than the
alteration or construction of improvements thereon), or any guaranty or
other credit enhancement with respect thereto (other than the substitution
of a similar commercially available credit enhancement contract);
provided, however, that the Special Servicer may agree to any
modification, waiver or amendment of any term of, or take any of the other
acts referenced in this Section 3.30(a) (and, with respect to the Serviced
Whole Loans, Section 3.31, 3.32 or 3.34, as applicable) with respect to a
Specially Serviced Loan that would have any such effect, but only if, in
the Special Servicer's reasonable and good faith judgment, in accordance
with the Servicing Standard, a material default on such Specially Serviced
Loan has occurred or a default in respect of payment on such Specially
Serviced Loan is reasonably foreseeable, and such modification, waiver,
amendment or other action is reasonably likely to produce a greater
recovery to Certificateholders (and, in the case of any Serviced Whole
Loan, the related Serviced Companion Loan Noteholders), on a present value
basis, than would liquidation. Any such action taken by the Special
Servicer shall be accompanied by an Officers' Certificate to such effect
and to which is attached the present value calculation which establishes
the basis for such determination, a copy of which shall be delivered to
the Trustee and to the Rating Agencies;
(ii) the Special Servicer may not extend the Maturity Date of any
Specially Serviced Loan beyond the date that is the date occurring later
than the earlier of (A) two years prior to the Rated Final Distribution
Date and (B) in the case of a Specially Serviced Loan secured by the
related Borrower's interest in a ground lease, the date that is 20 years
prior to the expiration date of such ground lease (or 10 years prior to
the expiration date of such lease with the consent of the Directing
Certificateholder if the Special Servicer gives due consideration to the
remaining term of such ground lease);
(iii) the Special Servicer may not agree to or permit any
modification, waiver or amendment of any term of any Mortgage Loan or
Serviced Loan Combination that is not in default or with respect to which
default is not reasonably foreseeable unless it provides the Trustee with
an opinion of counsel (at the expense of the related Borrower or such
other person requesting such modification or, if such expense cannot be
collected from the related Borrower or such other person, to be paid by
the Master Servicer as a Servicing Advance) to the effect that the
contemplated waiver, modification or amendment (A) would not be a
"significant modification" of such Mortgage Loan within the meaning of
Treasury Regulations Section 1.860G-2(b) and (B) 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; and
(iv) neither the Master Servicer nor the Special Servicer shall
permit any Borrower to add or substitute any collateral for an outstanding
Mortgage Loan or Serviced Whole Loan, which collateral constitutes real
property, unless (A) the Master Servicer or the Special Servicer, as
applicable, shall have first determined, in its reasonable and good faith
judgment, in accordance with the Servicing Standard, based upon a Phase I
environmental assessment (and such additional environmental testing as the
Master Servicer or the Special Servicer, as applicable, deems necessary
and appropriate) prepared by an Independent Person who regularly conducts
environmental assessments (and such additional environmental testing), at
the expense of the related Borrower, that such additional or substitute
collateral is in compliance with applicable environmental laws and
regulations and that there are no circumstances or conditions present with
respect to such new collateral relating to the use, management or disposal
of any Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation would be required under any
then-applicable environmental laws and/or regulations, and (B) such
addition and/or substitution would not result in the downgrade,
qualification or withdrawal of the rating then assigned by any Rating
Agency to any Class of Certificates (as confirmed in writing by each
Rating Agency at the expense of the related Borrower);
provided that notwithstanding clauses (i) through (iv) above, neither the Master
Servicer nor the Special Servicer shall be required to oppose the confirmation
of a plan in any bankruptcy or similar proceeding involving a Borrower if in its
reasonable and good faith judgment such opposition would not ultimately prevent
the confirmation of such plan or one substantially similar. Neither the Master
Servicer nor the Special Servicer shall extend the Maturity Date on any Mortgage
Loan except pursuant to Section 3.26(g) or this Section 3.30(a) and with respect
to a Serviced Whole Loan, Section 3.31, Section 3.32 or Section 3.34, as
applicable, or as otherwise required under the related Loan Documents.
(b) Neither the Master Servicer nor the Special Servicer shall have
any liability to the Trust Fund, the Certificateholders or, if applicable,
Serviced Companion Loan Noteholders or any other Person if its analysis and
determination that the modification, waiver, amendment or other action
contemplated by Section 3.30(a) is reasonably likely to produce a greater
recovery to Certificateholders and, if applicable, Serviced Companion Loan
Noteholders, as a collective whole, on a present value basis than would
liquidation, should prove to be wrong or incorrect, so long as the analysis and
determination were made on a reasonable basis in good faith and in accordance
with the Servicing Standard by the Master Servicer or the Special Servicer, as
applicable, and the Master Servicer or the Special Servicer, as applicable, was
not negligent in ascertaining the pertinent facts.
(c) Any payment of interest, which is deferred pursuant to any
modification, waiver or amendment permitted hereunder, shall not, for purposes
hereof, including, without limitation, calculating monthly distributions to
Certificateholders or, if applicable, Serviced Companion Loan Noteholders, be
added to the unpaid principal balance of the related Mortgage Loan or Serviced
Whole Loan, notwithstanding that the terms of such Mortgage Loan or Serviced
Whole Loan or such modification, waiver or amendment so permit.
(d) Except for waivers of penalty charges and notice periods, all
material modifications, waivers and amendments of the Mortgage Loans or any
Serviced Whole Loan entered into pursuant to this Section 3.30 (and, with
respect to the Serviced Whole Loans, Section 3.31, Section 3.32 or Section 3.34,
as applicable) shall be in writing.
(e) The Master Servicer or the Special Servicer, as applicable,
shall notify the Trustee and any related Serviced Companion Loan Noteholder in
writing, of any modification, waiver, material consent or amendment of any term
of any Mortgage Loan or Serviced Whole Loan and the date thereof, and shall
deliver to the Custodian for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver, material
consent or amendment, promptly (and in any event within 10 Business Days)
following the execution thereof.
(f) The Master Servicer or the Special Servicer may (subject to the
Servicing Standard), as a condition to granting any request by a Borrower for
consent, modification, waiver or indulgence or any other matter or thing, the
granting of which is within its discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan or Serviced Whole
Loan and is permitted by the terms of this Agreement and applicable law, require
that such Borrower pay to it (i) as additional servicing compensation, a
reasonable and customary fee for the additional services performed in connection
with such request (provided that the charging of such fee would not constitute a
"significant modification" of the related Mortgage Loan or Serviced Whole Loan,
within the meaning of Treasury Regulations Section 1.860G-2(b)), and (ii) any
related costs and expenses incurred by it. In no event shall the Master Servicer
or the Special Servicer be entitled to payment for such fees or expenses unless
such payment is collected from the related Borrower.
(g) The Directing Certificateholder shall have the rights set forth
in Sections 3.26 and 3.29 hereof with respect to any modification, waiver,
amendment or other action contemplated by Section 3.30(a) (and with respect to a
Serviced Whole Loan, the rights set forth in Section 3.31, Section 3.32 or
Section 3.34, as applicable). The Controlling Class Representative shall have no
duty to act in the interests of any Class other than the Controlling Class.
(h) Notwithstanding the foregoing, the Master Servicer shall not
permit the substitution of any Mortgaged Property pursuant to the defeasance
provisions of any Mortgage Loan (or any portion thereof) or Serviced Whole Loan,
if any, unless such defeasance complies with Treasury Regulations Section
1.860G-2(a)(8) and satisfies the conditions set forth in Section 3.09(f).
(i) Notwithstanding anything herein or in the related Loan Documents
to the contrary, the Master Servicer may permit the substitution of direct,
non-callable "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, or any other securities 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 any portion thereof) or
Serviced Whole Loan in lieu of the defeasance collateral specified in the
related Loan Documents or, if applicable, the Serviced Whole Loan; provided
that, the Master Servicer reasonably determines that allowing their use would
not cause a default or event of default under the related Loan Documents to
become reasonably foreseeable and the Master Servicer receives an Opinion of
Counsel (at the expense of the Borrower to the extent permitted under the Loan
Documents) to the effect that such use would not be and would not constitute a
"significant modification" of such Mortgage Loan or Serviced Whole Loan pursuant
to Treasury Regulations Section 1.860G-2(b) and would not otherwise endanger the
status of the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or result in
the imposition of a tax upon the Lower-Tier REMIC, 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") and provided, further, that the
requirements set forth in Section 3.09(f) are satisfied.
(j) If required under the related Loan Documents or if otherwise
consistent with the Servicing Standard, the Master Servicer shall establish and
maintain one or more accounts (the "Defeasance Accounts"), into which all
payments received by the 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 Loan Documents.
Each Defeasance Account shall at all times be an Eligible Account.
Notwithstanding the foregoing, in no event shall the Master Servicer permit such
amounts (other than a nominal amount) to be maintained in the Defeasance Account
for a period in excess of 365 days, unless such amounts are reinvested by the
Master Servicer in "government securities" within the meaning of Section
2(a)(16) of the Investment Company Act of 1940, or any other securities 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, the Master Servicer
shall deposit all payments received by it from defeasance collateral substituted
for any Mortgaged Property into its Collection Account or, if the Serviced Whole
Loan is involved, the Serviced Whole Loan Collection Account and treat any such
payments as payments made on the Mortgage Loan or Serviced Whole Loan, as
applicable, in advance of its Due Date in accordance with clause (a) of the
definition of Principal Distribution Amount, and not as a prepayment of the
related Mortgage Loan or Serviced Companion Loan. Notwithstanding anything
herein to the contrary, in no event shall the Master Servicer permit such
amounts to be maintained in its Collection Account or, if the Serviced Whole
Loan is involved, the Serviced Whole Loan Collection Account for a period in
excess of 365 days.
(k) In the event the Master Servicer or Special Servicer determines
that a refusal to consent by the Directing Certificateholder or any advice from
the Directing Certificateholder would cause the Master Servicer or Special
Servicer, as applicable, to violate applicable law, the terms of the applicable
Loan Documents, the REMIC Provisions or the terms of this Agreement, including
without limitation, the Servicing Standard, the Master Servicer or Special
Servicer shall disregard such refusal to consent or advice and notify the
Directing Certificateholder, the Trustee and the Rating Agencies of its
determination, including a reasonably detailed explanation of the basis
therefor.
(l) Any modification, waiver or amendment of or consents or
approvals relating to a Mortgage Loan or Serviced Whole Loan that is a Specially
Serviced Loan or REO Loan shall be performed by the Special Servicer and not the
Master Servicer, and to the extent provided in this Agreement and/or the
applicable Co-Lender Agreement, shall be subject to the consent of the Directing
Certificateholder or the Controlling Class Representative, as applicable.
(m) With respect to certain Mortgage Loans originated or acquired by
GACC and subject to defeasance, GACC has transferred to a third party, the right
to establish or designate the successor borrower and to purchase or cause to be
purchased the related defeasance collateral ("GACC Defeasance Rights and
Obligations"). In the event the Master Servicer receives notice of a defeasance
request with respect to a Mortgage Loan that provides for GACC Defeasance Rights
and Obligations, the Master Servicer shall provide, upon receipt of such notice,
written notice of such defeasance request to GACC or its assignee. Until such
time as GACC provides written notice to the contrary, notice of a defeasance of
a Mortgage Loan with GACC Defeasance Rights and Obligations shall be delivered
to CDHC, LLC, x/x Xxxxxxxxxx Xxxxxxx Xxxxxxx, XXX, 00000 Xxxxxx Xxxxxxx Xxxx.,
Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Legal Department, Tel:
(000) 000-0000; Fax: (000) 000-0000.
(n) For any Mortgage Loan and Serviced Whole Loan (other than a
Specially Serviced Loan), subject to the rights of the Special Servicer set
forth in this Section 3.30, and further subject to the rights of the Directing
Certificateholder set forth herein, including in Sections 3.31, 3.32 and 3.34
and, with respect to any Serviced Whole Loan, further subject to the rights of
the related Serviced Companion Loan Noteholder(s) under the related Co-Lender
Agreement, the Master Servicer, without the consent of the Special Servicer or
the Directing Certificateholder, as applicable, shall be responsible for any
request by a Mortgagor for the consent or approval of the mortgagee with respect
to:
(i) approving routine leasing activity with respect to any lease for
less than the lesser of (A) 30,000 square feet and (B) 25% of the related
Mortgaged Property;
(ii) approving any waiver affecting the timing of receipt of
financial statements from any Borrower; 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 Borrower (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 (except as provided
for in Sections 3.30(a)(i)-(v)) in connection with a defeasance permitted
by the terms of the related Mortgage Loan or Serviced Whole Loan if the
Master Servicer receives an Opinion of Counsel (which Opinion of Counsel
shall be an expense of the Borrower) to the effect that such modification,
waiver or consent would not cause either Trust 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 rights-of-way
and non-material easements and consent to subordination of the related
Mortgage Loan or Serviced Whole Loan to such non-material rights-of-way or
easements; and
(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.
provided, however, in the case of any Serviced Whole Loan, the Master Servicer
shall provide written notice of such action to the related Serviced Companion
Loan Noteholder(s); and provided, further, that the Master Servicer shall
promptly notify the Special Servicer of any requests not subject to this Section
3.30(n) for which the Special Servicer is responsible pursuant to this Section
3.30 and shall deliver to the Special Servicer (which delivery may be by
electronic transmission in a format acceptable to the Master Servicer and
Special Servicer) a copy of the request, and all information in the possession
of the 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 listed on Exhibit X received by the 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 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 (i.e.,
project reserve thresholds, lease-up requirements, sales requirements, etc.), as
set forth in the applicable loan documents, have been satisfied.
Section 3.31 Rights of Holders of the Serviced Whole Loans. (a) The
Master Servicer and Special Servicer acknowledge and agree that each Serviced
Whole Loan is subject to the terms and provisions of the related Co-Lender
Agreement and each agrees to service the Serviced Whole Loan in accordance with
the related Co-Lender Agreement and this Agreement, including, without
limitation, effecting distributions and allocating reimbursement of expenses in
accordance with the related Co-Lender Agreement and performing the obligations
of the holder of the Mortgage Loan thereunder; provided that, with respect to
the Spectrum Centre Whole Loan, Section 3.34 shall apply and not this Section
3.31. Notwithstanding anything to the contrary in this Agreement, the Master
Servicer and Special Servicer agree not to take any action with respect to
Serviced Whole Loan or the related Mortgaged Property without the prior consent
of the applicable Companion Loan Noteholder or group of Companion Loan
Noteholders, to the extent that the related Co-Lender Agreement provides that
such Companion Loan Noteholder or group of Companion Loan Noteholders is
entitled or required to consent or object to such action, and further to the
extent that any such action or inaction based on the consent or objection, as
the case may be, of such Companion Loan Noteholder or group of Companion Loan
Noteholders does not cause a violation of the related Mortgage Loan Documents,
applicable law or the Servicing Standard, and to deliver such reports,
documents, information and summaries as required by the related Co-Lender
Agreement. Each of the Master Servicer and Special Servicer acknowledges and
agrees that certain of such Companion Loan Noteholders have the right to cure
certain defaults with respect to the related Mortgage Loan and to purchase the
related Mortgage Loan, in each case pursuant to the terms and conditions of the
related Co-Lender Agreement, and shall take all reasonable actions necessary or
appropriate to permit the applicable Companion Loan Noteholder(s) to exercise
those rights.
(b) Subject to the related Mortgage Loan Documents, notwithstanding
anything to the contrary contained herein (but subject to the last paragraph of
this Section 3.31(b)), (i) the Special Servicer shall be required to consult
with the Directing Certificateholder (or, if applicable, all Persons that could
comprise the Directing Certificateholder) upon the occurrence of any event of
default under the related Mortgage Loan Documents, to consider alternative
actions recommended by the Directing Certificateholder and to consult with the
Directing Certificateholder (or, if applicable, all Persons that could comprise
the Directing Certificateholder) with respect to determinations made pursuant to
Section 3.10 or Section 3.18 that require the consent of the Directing
Certificateholder and (ii) at any time (whether or not an event of default has
occurred) the Master Servicer and the Special Servicer shall be required to (A)
consult with the Directing Certificateholder (or, if applicable, all Persons
that could comprise the Directing Certificateholder) (1) with respect to
proposals to take any significant action with respect to the related Serviced
Whole Loan and the related Mortgaged Property and to consider alternative
actions recommended by the Directing Certificateholder and (2) to the extent
that the related Whole Loan documents grant the lender the right to approve
budgets for the related Mortgaged Property, prior to approving any such budget
and (B) prior to taking any of the actions set forth in the relevant sections in
the related Co-Lender Agreement relating to actions of the servicer and the
approval thereof by the Directing Certificateholder, to notify in writing the
Directing Certificateholder (or, if applicable, all Persons that could comprise
the Directing Certificateholder) of any proposal to take any of such actions
(and to provide such Directing Certificateholder (or, if applicable, all Persons
that could comprise the Directing Certificateholder) with such non-proprietary
information reasonably requested by such Directing Certificateholder as may be
necessary in the reasonable determination of such Directing Certificateholder in
order make a judgment, the expense of providing such information to be an
expense of the requesting party) and to receive the prior written approval of
such Directing Certificateholder (which approval may be withheld in its sole
discretion if the related Co-Lender Agreement so provides); provided, if the
Directing Certificateholder fails to notify the Special Servicer or the Master
Servicer, as applicable, of its approval or disapproval of any such proposed
action requiring its consent within ten Business Days of delivery to the
Directing Certificateholder (or, if applicable, all Persons that could comprise
the Directing Certificateholder) by the Special Servicer or the Master Servicer,
as applicable, of written notice of such a proposed action, together with the
information reasonably requested by the Directing Certificateholder pursuant to
this Section 3.31(b), such action by the Special Servicer or Servicer, as
applicable, shall be deemed to have been approved by the Directing
Certificateholder pursuant to the Co-Lender Agreement and this Section 3.31(b).
In connection with any action or determination or proposed action or
determination by the Special Servicer referred to in this Section 3.31(b), the
Special Servicer shall prepare a summary of such proposed action or
determination and an analysis of whether or not such action is reasonably likely
to produce a greater recovery on a present value basis than not taking such
action or making such determination and shall provide to the Directing
Certificateholder (or, if applicable, all Persons that could comprise the
Directing Certificateholder) such summary and such information as is in its
possession or control and is reasonably requested by the Directing
Certificateholder as may be necessary in the reasonable judgment of the
Directing Certificateholder in order make a determination with respect to each
of the matters contained in this Section 3.31(b) and in the relevant sections of
the related Co-Lender Agreement.
The Master Servicer or Special Servicer shall provide to the
Directing Certificateholder (or, if applicable, all Persons that could comprise
the Directing Certificateholder) by hard copy or by electronic means
concurrently with the delivery thereof to the related mortgagor, copies of any
notice of an event of default under the related Whole Loan Documents and any
other material notices sent to such mortgagor or with respect to foreclosure or
other exercise of remedies or enforcement, modification or waiver with respect
to the related Serviced Whole Loan or the related Mortgaged Property.
Subject to the provisions of the related Co-Lender Agreement,
notwithstanding the foregoing, (i) if the Master Servicer or Special Servicer,
as applicable, determines, in accordance with the Servicing Standard, that
immediate action is necessary to protect the interest of the Certificateholders
and the related Companion Loan Holders (as a collective whole), then the Master
Servicer or Special Servicer, as applicable may take any such action without
waiting for the response of the holder of the related Directing
Certificateholder, and (ii) in no event will the Master Servicer or the Special
Servicer to take any action at the request of the related Directing
Certificateholder or refrain from taking any action to the extent that taking
such action or refraining from taking such action would not be in accordance
with the Servicing Standard.
(c) The Master Servicer or Special Servicer, as applicable, shall
provide to each Companion Loan Noteholder any reports and information related to
the related Serviced Whole Loan, the Mortgaged Property and/or the related
Borrower required to be provided to Companion Loan Noteholders under the related
Co-Lender Agreement.
(d) In the event of any inconsistency between this Agreement and the
Co-Lender Agreement relating to servicing, consents or approvals for any
Serviced Whole Loan, such Co-Lender Agreement shall control, and this Agreement
shall in no event limit, reduce or impair any rights of a Serviced Companion
Loan Noteholder under any Co-Lender Agreement.
(e) With respect to any action relating to Serviced Whole Loans that
the Master Servicer or Special Servicer, as applicable, is required to obtain
written confirmation from each Rating Agency that the then current rating
assigned to any of the Certificates that are currently being rated by such
Rating Agency will not be qualified, downgraded or withdrawn in connection with
or as a result of such action, it shall also obtain such a written confirmation
from each Rating Agency for any Companion Loan Securities.
Section 3.32 Certain Intercreditor Matters Relating to the Whole
Loans. (a) With respect to the Serviced Whole Loans, except for those duties to
be performed by, and notices to be furnished by, the Trustee under this
Agreement, the Master Servicer or the Special Servicer, as applicable, shall
perform such duties and furnish such notices, reports and information on behalf
of the Trust Fund as may be the obligation of the Trust under the related
Co-Lender Agreement.
(b) The Master Servicer shall maintain a register (the "Serviced
Companion Loan Noteholder Register") on which the Master Servicer shall record
the names and addresses of the Serviced Companion Loan Noteholders and wire
transfer instructions for such Serviced Companion Loan Noteholders from time to
time, to the extent such information is provided in writing to the Master
Servicer by a Serviced Companion Loan Noteholder. The initial Serviced Companion
Loan Noteholder Register is attached hereto as Exhibit Z.
In no event shall the Master Servicer be obligated to pay any party
the amounts payable to a Serviced Companion Loan Noteholder hereunder other than
the Person listed as the applicable Serviced Companion Loan Noteholder on the
Serviced Companion Loan Noteholder Register. In the event that a Serviced
Companion Loan Noteholder transfers the related Serviced Companion Loan without
notice to the Master Servicer, the Master Servicer shall have no liability
whatsoever for any misdirected payment on such Serviced Companion Loan and shall
have no obligation to recover and redirect such payment.
The Master Servicer shall promptly provide the names and addresses
of any Serviced Companion Loan Noteholder to any party hereto, any related
Companion Loan Noteholder or any successor thereto upon written request, and any
such party or successor may, without further investigation, conclusively rely
upon such information. The Master Servicer shall have no liability to any Person
for the provision of any such names and addresses.
Upon prior written request, any Serviced Companion Loan Noteholder
may obtain any reasonable information in the Master Servicer's or Special
Servicer's possession relating to the related Serviced Whole Loan.
(c) The Directing Certificateholder shall not owe any fiduciary duty
to the Trustee, the Master Servicer, any Special Servicer or any
Certificateholder (including the Controlling Class Representative, if
applicable), as applicable. The Directing Certificateholder will not have any
liability to the Certificateholders (including the Controlling Class
Representative, if applicable) for any action taken, or for refraining from the
taking of any action or the giving of any consent, pursuant to this Agreement,
or for errors in judgment. By its acceptance of a Certificate, each
Certificateholder will be deemed to have confirmed its understanding that the
Directing Certificateholder may take or refrain from taking actions that favor
the interests of the Directing Certificateholder over the Certificateholders,
and that such Directing Certificateholder may have special relationships and
interests that conflict with the interests of the Certificateholders and will be
deemed to have agreed to take no action against such Directing Certificateholder
or any of its officers, directors, employees, principals or agents as a result
of such a special relationship or conflict, and that such Directing
Certificateholder shall not be liable by reason of its having acted or refrained
from acting solely in the interests of the Directing Certificateholder.
(d) With respect to any Serviced Whole Loan, the Directing
Certificateholder shall be entitled to exercise the consent rights, cure rights,
purchase rights and the right to appoint/remove the Special Servicer with
respect to its Serviced Whole Loan, as applicable, to the extent set forth in
the applicable Co-Lender Agreement, in accordance with the terms of the related
Co-Lender Agreement and this Agreement.
(e) Anything in this Agreement to the contrary notwithstanding, no
Serviced Companion Loan Noteholder shall be required to reimburse the Trust Fund
or any other Person for payment of any taxes imposed on any REMIC or Grantor
Trust or Advances therefor or for any Advance Interest thereon or for deficits
in other items of disbursement or income resulting from the use of funds for
payment of any such taxes, nor shall any disbursement or payment otherwise
distributable to such Serviced Companion Loan Noteholder be reduced to offset or
make-up any such payment or deficit.
(f) With respect to the Fair Lakes Portfolio Whole Loan, if the Fair
Lakes Portfolio Mortgage Loan is removed from the Trust Fund due to repurchase,
while the Fair Lakes Portfolio Companion Loan remains in the securitization
trust related to the Xxxxxxx Xxxxx 2006-GG8 transaction, until a replacement
pooling agreement has been entered into and confirmation from each Rating Agency
confirming that the servicing of such Whole Loan will not cause a downgrade,
withdrawal or qualification of the Companion Loan Securities has been obtained,
the Master Servicer shall cause the Fair Lakes Portfolio Whole Loan to be
serviced in accordance with the Servicing Standard as if this Agreement was
still in full force and effect with respect to such Whole Loan.
(g) With respect to the Ala Moana Portfolio Whole Loan, if the Ala
Moana Portfolio Mortgage Loan is removed from the Trust Fund due to repurchase,
while the Ala Moana Portfolio Companion Loans remain in the respective
securitization trust related to a companion loan securitization transaction,
until a replacement pooling agreement has been entered into and confirmation
from each Rating Agency confirming that the servicing of such Whole Loan will
not cause a downgrade, withdrawal or qualification of the Companion Loan
Securities has been obtained, the Master Servicer shall cause the Ala Moana
Portfolio Whole Loan to be serviced in accordance with the Servicing Standard as
if this Agreement was still in full force and effect with respect to such Whole
Loan.
(h) All provisions required by any Co-Lender Agreement to be
included herein (to the extent not already set forth herein) are incorporated
herein by reference and made a part hereof.
Section 3.33 [Reserved]
Section 3.34 Rights of Holders of the Spectrum Centre Whole Loan.
The Master Servicer and Special Servicer acknowledges and agrees that the
Spectrum Centre Whole Loan is subject to the terms and provisions of the
Spectrum Centre Intercreditor Agreement and each agrees to service the Spectrum
Centre Whole Loan in accordance with the Spectrum Centre Intercreditor Agreement
and this Agreement, including, without limitation, effecting distributions and
allocating reimbursement of expenses in accordance with the Spectrum Centre
Intercreditor Agreement and performing the obligations of the "Note A Holder"
thereunder. Notwithstanding anything to the contrary in this Agreement, each of
the Master Servicer and the Special Servicer agrees not to take any action with
respect any of the Spectrum Centre Whole Loan or the related Mortgaged Property
without the prior consent of the applicable Companion Loan Noteholder to the
extent that the Spectrum Centre Intercreditor Agreement provides that such
Companion Loan Noteholder is entitled or required to consent to such action, to
the extent such action or inaction does not cause a violation of the terms of
the related Mortgage Loan Documents, applicable law or the Servicing Standard,
and agree to deliver such reports and summaries as required by the Spectrum
Centre Intercreditor Agreement. Each of the Master Servicer and Special Servicer
acknowledges and agrees that such Companion Loan Noteholder has the right to
purchase the related Mortgage Loan pursuant to the terms and conditions of the
Spectrum Centre Intercreditor Agreement.
Further, pursuant to the terms of the Spectrum Centre Intercreditor
Agreement, it is contemplated that the related Borrower under the Spectrum
Centre Whole Loan will remit payments on the Spectrum Centre Mortgage Loan to
the Master Servicer, and for the Spectrum Centre B Loan (regardless of whether
it has been securitized or is securitized in the future), the related Borrower
will remit payments on the Spectrum Centre B Loan directly to the servicer for
such B Loan; provided, however, that under the circumstances identified in the
Spectrum Centre Intercreditor Agreement, the related Borrower under the Spectrum
Centre B Loan (even after the Spectrum Centre B Loan has been securitized) will
be required to remit payments on the Spectrum Centre B Loan directly to the
Master Servicer or the Special Servicer under this Agreement.
Additionally, if at any time with respect to the Spectrum Centre
Whole Loan an event of default enumerated in Section 8(a) of the Spectrum Centre
Intercreditor Agreement occurs and the Spectrum Centre Mortgage Loan becomes
subject to a purchase option, as described under Section 8 of the Spectrum
Centre Intercreditor Agreement, the related Spectrum Centre B Loan Noteholder
will have the right to purchase the Spectrum Centre Mortgage Loan at the
defaulted mortgage loan purchase price described therein.
Notwithstanding anything to the contrary in this Agreement but
subject to the initial paragraph of this Section 3.34, the Master Servicer or
the Special Servicer, as applicable, shall be required to obtain the prior
written consent of the Spectrum Centre B Loan Noteholder with respect to any
amendment, deferral, extension, waiver or other modification of the Spectrum
Centre Whole Loan enumerated in, and under the circumstances described in,
Section 16(a) of the Spectrum Centre Intercreditor Agreement.
With respect to the Spectrum Centre Whole Loan, the Master Servicer
or Special Servicer, as applicable, shall, when provided or available to it from
time to time, deliver to the Spectrum Centre B Loan Noteholder (i) a summary of
the current status of principal and interest payments on such Serviced Whole
Loan, (ii) copies of all financial statements and reports required pursuant to
the related Mortgage Loan Documents, to the extent in the Master Servicer's or
Special Servicer's, as applicable, possession, (iii) current information, if
any, as to the value of the related Mortgage Property, to the extent in the
Master Servicer's or Special Servicer's, as applicable, possession, (iv) a copy
of any other agreements that govern the administration of such Serviced Whole
Loan, (v) copies of any default or acceleration notices sent to the related
Borrower, (vi) copies of each other report provided under this Agreement to the
Certificateholders and/or the Trustee, including, without limitation, the CMSA
reports, (vii) copies of all requests and material correspondence relating to
such Serviced Whole Loan and (viii) other information with respect to the
Borrower or such Serviced Whole Loan, reasonably requested by the Spectrum
Centre B Loan Noteholder, to the extent in the Master Servicer's or Special
Servicer's, as applicable, possession. Notwithstanding anything to the contrary
in this paragraph, the Master Servicer may deliver any information required by
this paragraph by making it available on its website.
Notwithstanding any provision of this Agreement to the contrary,
consistent with the Servicing Standard, the servicing rights and obligations of
the Special Servicer with respect to the Spectrum Centre B Loan will be limited
pursuant to the terms of the Spectrum Centre Intercreditor Agreement prior to,
or after the discontinuance of, a "Material Default" (as defined in Section 3(b)
of the Spectrum Centre Intercreditor Agreement).
Section 3.35 Litigation Control.
(a) The Special Servicer shall, (1) direct, manage, prosecute and/or
defend any action brought by a Mortgagor against the Trust 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 ("Trust-Related Litigation"). To the
extent the Master Servicer is named in Trust-Related Litigation, in order to
effectuate the role of the Special Servicer, the Master Servicer shall (1)
notify the Special Servicer of such Trust Related Litigation within ten (10)
days of the Master Servicer receiving notice of such Trust Related Litigation;
(2) provide monthly status reports to the Special Servicer regarding such
Trust-Related Litigation; and (3) act at the direction of the Special Servicer
in representing the interests of the Trust with respect to decisions and
resolutions related to such Trust-Related Litigation, including but not limited
to the selection of counsel, provided however, if there are claims against the
Master Servicer and the Master Servicer has not determined that separate counsel
is required for such claims, such counsel shall be reasonably acceptable to
Master Servicer. Notwithstanding the foregoing, nothing in this section shall
limit the Master Servicer's right to make final and binding determinations
relating to claims against the Master Servicer. Further, nothing in this section
shall require the Master Servicer to take or fail to take any action which, in
the Master Servicer's good faith and reasonable judgment, may (1) result in an
Adverse REMIC Event or (2) subject the Master Servicer to material liability or
materially expand the scope of the Master Servicer's obligations under this
Agreement. The Special Servicer shall have the right at any time to direct the
Master Servicer to settle any claims brought against the Trust, provided that
such settlement does not require any admission of liability or wrongdoing on the
part of the Master Servicer, the cost of such settlement is paid by the Trust,
and the Master Servicer is indemnified pursuant to Section 6.03 hereof for all
costs and expenses of the Master Servicer incurred in defending and settling the
Trust Related Litigation. The foregoing paragraph shall not apply in the event
the Special Servicer authorizes, and the Master Servicer agrees (both authority
and agreement to be in writing), to make certain decisions or control certain
litigation on behalf of the Trust.
(b) 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 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 or guarantor 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 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).
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01 Distributions. (a) (i) [Reserved]
(ii) Principal and interest amounts, reimbursement of Realized
Losses and Additional Trust Fund Expenses and timing of distributions on
each Lower-Tier REMIC Regular Interest will be identical to such amounts,
reimbursements and timing on the related Corresponding Certificates and in
the case of distributions of principal or reimbursement of Realized Losses
and Additional Trust Fund Expenses on
(a) the Class A-1 Certificates, first to the Lower-Tier REMIC Regular
Interest LA-1-1, second to the Lower-Tier REMIC Regular Interest
LA-1-2, third to the Lower-Tier REMIC Regular Interest LA-1-3 and
then to the Lower-Tier REMIC Regular Interest LA-1-4, in each case,
until reduced to zero;
(b) the Class A-D Certificates, first to the Lower-Tier REMIC Regular
Interest LA-D-1, second to the Lower-Tier REMIC Regular Interest
LA-D-2, third to the Lower-Tier REMIC Regular Interest LA-D-3 and
then to the Lower-Tier REMIC Regular Interest LA-D-4, in each case,
until reduced to zero;
(c) the Class A-2 Certificates, first to the Lower-Tier REMIC Regular
Interest LA-2-1, second to the Lower-Tier REMIC Regular Interest
LA-2-2, third to the Lower-Tier REMIC Regular Interest LA-2-3,
fourth to the Lower-Tier REMIC Regular Interest LA-2-4, fifth to the
Lower-Tier REMIC Regular Interest LA-2-5 and then to the Lower-Tier
REMIC Regular Interest LA-2-6, in each case, until reduced to zero;
(d) the Class A-4 Certificates, first to the Lower-Tier REMIC Regular
Interest LA-4-1, and then to the Lower-Tier REMIC Regular Interest
LA-4-2, in each case, until reduced to zero;
(e) the Class A-5 Certificates, first to the Lower-Tier REMIC Regular
Interest LA-5-1, second to the Lower-Tier REMIC Regular Interest
LA-5-2, third to the Lower-Tier REMIC Regular Interest LA-5-3,
fourth to the Lower-Tier REMIC Regular Interest LA-5-4, fifth to the
Lower-Tier REMIC Regular Interest LA-5-5, and then to the Lower-Tier
REMIC Regular Interest LA-5-6, in each case, until reduced to zero;
(f) the Class A-1A Certificates, first to the Lower-Tier REMIC Regular
Interest LA-1A-1, second to the Lower-Tier REMIC Regular Interest
LA-1A-2, third to the Lower-Tier REMIC Regular Interest LA-1A-3,
fourth to the Lower-Tier REMIC Regular Interest LA-1A-4, fifth to
the Lower-Tier REMIC Regular Interest LA-1A-5, sixth to the
Lower-Tier REMIC Regular Interest LA-1A-6, seven, to the Lower-Tier
REMIC Regular Interest LA-1A-7, eighth to the Lower-Tier REMIC
Regular Interest LA-1A-8, ninth to the Lower-Tier REMIC Regular
Interest LA-1A-9, tenth to the Lower-Tier REMIC Regular Interest
LA-1A-10, eleventh to the Lower-Tier REMIC Regular Interest
LA-1A-11, twelfth to the Lower-Tier REMIC Regular Interest LA-1A-12,
thirteenth to the Lower-Tier REMIC Regular Interest LA-1A-13,
fourteenth, to the Lower-Tier REMIC Regular Interest LA-1A-14 and
then to the Lower-Tier REMIC Regular Interest LA-1A-15, in each
case, until reduced to zero;
(g) the Class A-1S Certificates, first to the Lower-Tier REMIC Regular
Interest LA-1S-1, second to the Lower-Tier REMIC Regular Interest
LA-1S-2, third to the Lower-Tier REMIC Regular Interest LA-1S-3,
fourth to the Lower-Tier REMIC Regular Interest LA-1S-4, fifth to
the Lower-Tier REMIC Regular Interest LA-1S-5, sixth to the
Lower-Tier REMIC Regular Interest LA-1S-6, seven, to the Lower-Tier
REMIC Regular Interest LA-1S-7, eighth to the Lower-Tier REMIC
Regular Interest LA-1S-8, ninth to the Lower-Tier REMIC Regular
Interest LA-1S-9, tenth to the Lower-Tier REMIC Regular Interest
LA-1S-10, eleventh to the Lower-Tier REMIC Regular Interest
LA-1S-11, twelfth to the Lower-Tier REMIC Regular Interest LA-1S-12,
thirteenth to the Lower-Tier REMIC Regular Interest LA-1S-13,
fourteenth, to the Lower-Tier REMIC Regular Interest LA-1S-14 and
then to the Lower-Tier REMIC Regular Interest LA-1S-15, in each
case, until reduced to zero;
(h) the Class D Certificates, first to the Lower-Tier REMIC Regular
Interest LD-1 and then to the Lower-Tier REMIC Regular Interest
LD-2, in each case, until reduced to zero;
(i) the Class E Certificates, first to the Lower-Tier REMIC Regular
Interest LE-1 and then to the Lower-Tier REMIC Regular Interest
LE-2, in each case, until reduced to zero;
(j) the Class F Certificates, first to the Lower-Tier REMIC Regular
Interest LF-1 and then to the Lower-Tier REMIC Regular Interest
LF-2, in each case, until reduced to zero;
(k) the Class G Certificates, first to the Lower-Tier REMIC Regular
Interest LG-1, second to the Lower-Tier REMIC Regular Interest LG-2
and then to the Lower-Tier REMIC Regular Interest LG-3, in each
case, until reduced to zero;
(l) the Class H Certificates, first to the Lower-Tier REMIC Regular
Interest LH-1, second to the Lower-Tier REMIC Regular Interest LH-2
and then to the Lower-Tier REMIC Regular Interest LH-3, in each
case, until reduced to zero;
(m) the Class J Certificates, first to the Lower-Tier REMIC Regular
Interest LJ-1 and then to the Lower-Tier REMIC Regular Interest
LJ-2, in each case, until reduced to zero;
(n) the Class K Certificates, first to the Lower-Tier REMIC Regular
Interest LK-1, and then to the Lower-Tier REMIC Regular Interest
LK-2, in each case, until reduced to zero; and
(o) the Class L Certificates, first to the Lower-Tier REMIC Regular
Interest LL-1, and then to the Lower-Tier REMIC Regular Interest
LL-2, in each case, until reduced to zero;
except that, solely for this purpose, all calculations of interest with respect
to the Corresponding Lower-Tier REMIC Regular Interests shall be made as though
the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-5, Class A-1A, Class A-1S, 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 O, Class P, Class Q and Class S Certificate Pass-Through Rates were equal
to the Weighted Average Net Mortgage Pass Through Rate and as though the Class
XS and Class XP Notional Amounts were zero at all times and such that the
amounts and timing of interest distributions on each Corresponding Lower-Tier
REMIC Regular Interest represent the aggregate of the corresponding amounts on
each Class of Corresponding Certificates (or portion thereof) and its related
Component or Components of the Class XS and Class XP Certificates; provided that
(A) interest shall be deemed distributed on such Lower-Tier REMIC Regular
Interest only in the same priority and to the extent actually distributable on
such related Class of Corresponding Certificates (and pro rata among such
Lower-Tier REMIC Regular Interests corresponding to a related Class of
Corresponding Certificates) or related Component and (B) interest distributable
on a Class of Class X Certificates shall be distributable pro rata among the
related Components.
All distributions of reimbursements of Realized Losses and
Additional Trust Fund Expenses made in respect of any Class of Principal Balance
Certificates on each Distribution Date pursuant to Section 4.01(b) shall be
deemed to have first been distributed from the Lower-Tier REMIC to the
Upper-Tier REMIC in respect of its Corresponding Lower-Tier Regular Interest.
On each Distribution Date, the Trustee shall apply amounts related
to each Prepayment Premium and Yield Maintenance Charge then on deposit in the
Lower-Tier Distribution Account and received during or prior to the related
Collection Period to the Lower-Tier Regular Interests in proportion to the
amount of principal distributed to each Class of Lower-Tier Regular Interests on
such Distribution Date pursuant to this Section 4.01(a)(ii).
The Trustee shall be deemed to deposit the Lower-Tier Distribution
Amount and the amount of any Prepayment Premiums and any Yield Maintenance
Charges distributed to the Upper-Tier REMIC pursuant to this Section 4.01(a)(ii)
into the Upper-Tier Distribution Account. Any amount in respect of the Mortgage
Pool that remains in the Lower-Tier Distribution Account on each Distribution
Date after distribution of the Lower-Tier Distribution Amount and distribution
of Prepayment Premiums and Yield Maintenance Charges in respect of the Mortgage
Pool shall be distributed to the Holders of the Class LR Certificates (but only
to the extent of such amount for such Distribution Date remaining in the
Lower-Tier Distribution Account, if any).
(b) On each Distribution Date occurring prior to the Crossover Date,
the Trustee shall withdraw from the Upper-Tier Distribution Account the amounts
deposited in the Upper-Tier Distribution Account in respect of such Distribution
Date pursuant to Section 4.01(a)(ii), and distribute such amount to
Certificateholders in the amounts and in the order of priority set forth below:
(i) First, concurrently (A) to the Class A-1A Certificates, the
Class A-1A Group 2 Interest Distribution Amount, (B) to the Class A
Combined Certificates, the Class A Combined Interest Distribution Amount
with such amount allocated (x) first, to the Class A-1, Class A-1D, Class
A-2, Class A-3, Class A-AB, Class A-4 and Class A-5 Certificates from
amounts attributable to Mortgage Loans in Loan Group 1, and to the Class
A-1S Certificates from Mortgage Loans in Loan Group 2, pro rata, then, to
the Class A-M Certificates from amounts attributable to Mortgage Loans in
Loan Group 1 and then, to the Class A-J Certificates from amounts
attributable to Mortgage Loans in Loan Group 1, in each case, up to an
amount equal to the aggregate Interest Accrual Amount for those Classes in
accordance with their respective interest entitlements, and (C) on the
Class XS and Class XP Certificates, pro rata, from the Available Funds for
such Distribution Date up to an amount equal to the Interest Accrual
Amount for each such Class; provided, however, if on any Distribution
Date, the Available Funds (or applicable portion thereof) are insufficient
to pay in full the total amount of interest to be paid to any of the
Classes described in this clause First, the Available Funds for such
Distribution Date will be allocated pro rata among the Class A Combined
Certificates, Class A-1A and Class X Certificates with the amount
allocated to the Class A Combined Certificates being applied first, to the
Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-5 and Class A-1S Certificates, pro rata, second, to the Class A-AM
Certificates and last, to the Class A-J Certificates, in accordance with
their respective interest entitlements;
(ii) Second, to the Class A Combined Certificates, the Class A-1A
Certificates and the Class X Certificates, with the amount allocated to
the Class A Combined Certificates being applied first, to the Class A-1,
Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5, Class
A-1S and Class A-1A Certificates, pro rata, then, to the Class A-M
Certificates and then to the Class A-J Certificates, in respect of
interest, up to an amount equal to the aggregate unpaid Interest
Shortfalls previously allocated to such Classes;
(iii) Third, in reduction of the Certificate Balances thereof
concurrently, to:
(A) the Class A-1A Certificates, an amount equal to the Class
A-1A Group 2 Principal Distribution Amount for such Distribution
Date and, after the Class A Combined Certificates are reduced to
zero, the Group 1 Principal Distribution Amount after payments to
the Class A Combined Certificates have been made on such
Distribution Date, until the Class A-1A Certificates have been
reduced to zero;
(B)(X) to the Class A Combined Certificates (other than the
Class A-M and Class A-J Certificates) in the following order:
(i) first, to the Class A-1S Certificates, in an amount equal
to the Class A Combined Group 2 Principal Distribution Amount, and
after the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB,
Class A-4 and Class A-5 Certificates have been reduced to zero, the
Group 1 Principal Distribution Amount remaining after payments to
the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class
A-4 and Class A-5 Certificates have been made on such Distribution
Date, until the Class A-1S Certificates have been reduced to zero;
(ii) then, to the Class A-AB Certificates, in an amount up to
the Group 1 Principal Distribution Amount for such Distribution Date
and, after the Class A-1S Certificates have been reduced to zero,
the Class A Combined Group 2 Principal Distribution Amount after
payments to the Class A-1S Certificates have been made on such
Distribution Date, until the Certificate Balance of the Class A-AB
Certificates has been reduced to the Planned Principal Balance as
set forth on Annex A-3 for such Distribution Date,
(iii) then, to the Class A-1 and Class A-1D Certificates, pro
rata, in an amount equal to the Group 1 Principal Distribution
Amount (or the portion thereof remaining after distributions on the
Class A-AB Certificates pursuant to clause (ii) above) for such
Distribution Date and, after the Class A-1S has been reduced to
zero, the Class A Combined Group 2 Principal Distribution Amount
remaining after payments to the Class A-1S Certificates and payments
to the Class A-AB Certificates pursuant to clause (i) above have
been made on such Distribution Date, until the Class A-1 and Class
A-1D Certificates have been reduced to zero,
(iv) then, to the Class A-2 Certificates, in an amount equal
to the Group 1 Principal Distribution Amount (or the portion thereof
remaining after distributions on the Class A-1, Class A-1D and Class
A-AB Certificates pursuant to the prior clauses above) for such
Distribution Date and, after the Class A-1S Certificates have been
reduced to zero, the Class A Combined Group 2 Principal Distribution
Amount remaining after payments to the Class A-1S, Class A-1 and
Class A-1D Certificates and payments to the Class A-AB Certificates
pursuant to clause (i) above have been made on such Distribution
Date, until the Class A-2 Certificates have been reduced to zero,
(v) then, to the Class A-3 Certificates, in an amount equal to
the Group 1 Principal Distribution Amount (or the portion of it
remaining after distributions on the Class A-1, Class A-1D and Class
A-2 Certificates and distributions on the Class A-AB Certificates
pursuant to clause (ii) above) for such Distribution Date and, after
the Class A-1S Certificates have been reduced to zero, the Class A
Combined Group 2 Principal Distribution Amount remaining after
payments to the Class A-1S, Class A-1, Class A-1D and Class A-2
Certificates and payments to the Class A-AB Certificates pursuant to
clause (i) above have been made on such Distribution Date, until the
Class A-3 Certificates have been reduced to zero,
(vi) then, to the Class A-AB Certificates, in an amount equal
to the Group 1 Principal Distribution Amount (or the portion of it
remaining after distributions on the Class A-1, Class A-1D, Class
A-2 and Class A-3 Certificates and distributions on the Class A-AB
Certificates pursuant to clause (ii) above) for such Distribution
Date and, after the Class A-1S Certificates have been reduced to
zero, the Class A Combined Group 2 Principal Distribution Amount
remaining after payments to the Class A-1S, Class A-1, Class A-1D,
Class A-2 and Class A-3 Certificates and payments to the Class A-AB
Certificates pursuant to clause (i) above have been made on such
Distribution Date, until the Class A-AB Certificates have been
reduced to zero,
(vii) then, to the Class A-4 Certificates, in an amount equal
to the Group 1 Principal Distribution Amount (or the portion of it
remaining after distributions on the Class A-1, Class A-1D, Class
A-2, Class A-3 and Class A-AB Certificates and distributions on the
Class A-AB Certificates pursuant to clause (ii) above) for such
Distribution Date and, after the Class A-1S Certificates have been
reduced to zero, the Class A Combined Group 2 Principal Distribution
Amount remaining after payments to the Class A-1S, Class A-1, Class
A-1D, Class A-2 and Class A-3 Certificates and payments to the Class
A-AB Certificates pursuant to clause (i) above have been made on
such Distribution Date, until the Class A-4 Certificates have been
reduced to zero,
(viii) then, to the Class A-5 Certificates, in an amount equal
to the Group 1 Principal Distribution Amount (or the portion of it
remaining after distributions on the Class A-1, Class A-1D, Class
A-2, Class A-3, Class A-AB and Class A-4 Certificates and
distributions on the Class A-AB Certificates pursuant to clause (ii)
above) for such Distribution Date and, after the Class A-1S
Certificates have been reduced to zero, the Class A Combined Group 2
Principal Distribution Amount remaining after payments to the Class
A-1S, Class A-1, Class A-1D, Class A-2, Class A-3 and Class A-4
Certificates and payments to the Class A-AB Certificates pursuant to
clause (i) above have been made on such Distribution Date, until the
Class A-5 Certificates have been reduced to zero,
(B)(Y) to the Class A-M Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Group 1 Principal
Distribution Amount for such Distribution Date after the Class A-1, Class
A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5 and Class
A-1S Certificates have been reduced to zero and after the Class A-1S,
Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4 and
Class A-5 Certificates have been reduced to zero, the Class A Combined
Group 2 Principal Distribution Amount remaining after payments to the
Class A-1S, Class A-1, Class A-1D,Class A-2, Class A-3, Class A-AB, Class
A-4 and Class A-5 Certificates have been made on such Distribution Date,
until the Certificate Balance of such Class is reduced to zero; and
(B)(Z) to the Class A-J Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Group 1 Principal
Distribution Amount for such Distribution Date after the Class A-1, Class
A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5, Class A-1S
and Class A-M Certificates have been reduced to zero and after the Class
A-1S, Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4,
Class A-5 and Class A-M Certificates have been reduced to zero, the Class
A Combined Group 2 Principal Distribution Amount remaining after payments
to the Class A-1S, Class A-1, Class A-1D, Class A-2, Class A-3, Class
A-AB, Class A-4, Class A-5 and Class A-M Certificates have been made on
such Distribution Date, until the Certificate Balance of such Class is
reduced to zero;
(iv) Fourth, to the Class A Combined Certificates and the Class A-1A
Certificates, pro rata, to the extent not distributed pursuant to all
prior clauses, for the unreimbursed amounts of Realized Losses, if any, an
amount equal to the aggregate of such unreimbursed Realized Losses
previously allocated to such Class, with the amount of Realized Losses
allocated to the Class A Combined Certificates being applied first to the
Class A-1, Class A-1D, Class A-2, Class A-3, Class A-4, Class A-5 and
Class A-1S Certificates, pro rata, second, to the Class A-M Certificates
and last to the Class A-J Certificates;
(v) Fifth, to the Class B Certificates in respect of interest, up to
an amount equal to the aggregate Interest Accrual Amount of such Class;
(vi) Sixth, to the Class B Certificates in respect of interest, up
to an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class;
(vii) Seventh, to the Class B Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(viii) Eighth, to the Class B Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(ix) Ninth, to the Class C Certificates in respect of interest, up
to an amount equal to the aggregate Interest Accrual Amount of such Class;
(x) Tenth, to the Class C Certificates in respect of interest, up to
an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class;
(xi) Eleventh, to the Class C Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less the amount of the Principal Distribution Amount distributed
pursuant to all prior clauses, until the Certificate Balance of such Class
is reduced to zero;
(xii) Twelfth, to the Class C Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, up to an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xiii) Thirteenth, to the Class D Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xiv) Fourteenth, to the Class D Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xv) Fifteenth, to the Class D Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(xvi) Sixteenth, to the Class D Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xvii) Seventeenth, to the Class E Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xviii) Eighteenth, to the Class E Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xix) Nineteenth, to the Class E Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount, less the amount of the Principal Distribution Amount distributed
pursuant to all prior clauses, until the Certificate Balance of such Class
is reduced to zero;
(xx) Twentieth, to the Class E Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xxi) Twenty-first, to the Class F Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxii) Twenty-second, to the Class F Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxiii) Twenty-third, to the Class F Certificates in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less the amount of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxiv) Twenty-fourth, to the Class F Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xxv) Twenty-fifth, to the Class G Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxvi) Twenty-sixth, to the Class G Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxvii) Twenty-seventh, to the Class G Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxviii) Twenty-eighth, to the Class G Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xxix) Twenty-ninth, to the Class H Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxx) Thirtieth, to the Class H Certificates in respect of interest,
up to an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class;
(xxxi) Thirty-first, to the Class H Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxxii) Thirty-second, to the Class H Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xxxiii) Thirty-third, to the Class J Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxxiv) Thirty-fourth, to the Class J Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxxv) Thirty-fifth, to the Class J Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xxxvi) Thirty-sixth, to the Class J Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xxxvii) Thirty-seventh, to the Class K Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xxxviii) Thirty-eighth, to the Class K Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xxxix) Thirty-ninth, to the Class K Certificates in reduction of
the Certificate Balances thereof, an amount equal to the Principal
Distribution Amount less amounts of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xl) Fortieth, to the Class K Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xli) Forty-first, to the Class L Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xlii) Forty-second, to the Class L Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xliii) Forty-third, to the Class L Certificates in reduction of the
Certificate Balances thereof, an amount equal to the Principal
Distribution Amount less amounts of the Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xliv) Forty-fourth, to the Class L Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(xlv) Forty-fifth, to the Class M Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(xlvi) Forty-sixth, to the Class M Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(xlvii) Forty-seventh, to the Class M Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate Balance
of such Class is reduced to zero;
(xlviii) Forty-eighth, to the Class M Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class;
(xlix) Forty-ninth, to the Class N Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(l) Fiftieth, to the Class N Certificates in respect of interest, up
to an amount equal to the aggregate unpaid Class Interest Shortfalls
previously allocated to such Class;
(li) Fifty-first, to the Class N Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(lii) Fifty-second, to the Class N Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(liii) Fifty-third, to the Class O Certificates in respect of
interest, up to an amount equal to the aggregate Interest Accrual Amount
of such Class;
(liv) Fifty-fourth, to the Class O Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lv) Fifty-fifth, to the Class O Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(lvi) Fifty-sixth, to the Class O Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(lvii) Fifty-seventh, to the Class P Certificates, in respect of
interest, up to an amount equal to the Interest Accrual Amount of such
Class;
(lviii) Fifty-eighth, to the Class P Certificates, in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lix) Fifty-ninth, to the Class P Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount less amounts of Principal Distribution Amount distributed pursuant
to all prior clauses until the Certificate Balance of such Class is
reduced to zero;
(lx) Sixtieth, to the Class P Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(lxi) Sixty-first, to the Class Q Certificates, in respect of
interest, up to an amount equal to the Interest Accrual Amount of such
Class;
(lxii) Sixty-second, to the Class Q Certificates, in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lxiii) Sixty-third, to the Class Q Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses until the Certificate Balance of
such Class is reduced to zero;
(lxiv) Sixty-fourth, to the Class Q Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed amounts of
Realized Losses, if any, an amount equal to the aggregate of such
unreimbursed Realized Losses previously allocated to such Class;
(lxv) Sixty-fifth, to the Class S Certificates, in respect of
interest, up to an amount equal to the Interest Accrual Amount of such
Class;
(lxvi) Sixty-sixth, to the Class S Certificates, in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class;
(lxvii) Sixty-seventh, to the Class S Certificates, in reduction of
the Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses until the Certificate Balance of
such Class is reduced to zero;
(lxviii) Sixty-eighth, to the Class S Certificates, to the extent
not distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate of
such unreimbursed Realized Losses previously allocated to such Class; and
(lxix) Sixty-ninth, to the Class R and Class LR Certificates.
All references to "pro rata" in the preceding clauses with respect
to interest and Class Interest Shortfalls shall mean pro rata based on the
amount distributable pursuant to such clauses, with respect to distribution of
principal other than for unreimbursed Realized Losses shall mean pro rata based
on Certificate Balance and with respect to distributions with respect to
unreimbursed Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
Notwithstanding the foregoing, on each Distribution Date occurring
on or after the Crossover Date, the Principal Distribution Amount will be
distributed to the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-5, Class A-1A and Class A-1S Certificates, pro rata, based on
their respective Certificate Balances, in reduction of their respective
Certificate Balances, until the Certificate Balance of each such Class is
reduced to zero.
(c) On each Distribution Date, following the distribution from the
Lower-Tier Distribution Account in respect of the Lower-Tier Regular Interests
pursuant to Section 4.01(a)(ii), the Trustee shall make distributions of any
Prepayment Premiums and Yield Maintenance Charges received in the related
Collection Period from amounts deposited in the Upper-Tier Distribution Account
pursuant to Section 3.05(g), as follows:
(i) Prepayment Premiums, Yield Maintenance Charges received with
respect to Group 1 Mortgage Loans shall be distributed to the Class A-1,
Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5, Class
A-M, Class A-J, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J and Class K Certificates, in an amount equal to the
product of (a) a fraction, not greater than one, the numerator of which 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, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4,
Class A-5, Class A-M, Class A-J, Class B, Class C, Class D, Class E, Class
F, Class G, Class H, Class J and Class K Certificates on such Distribution
Date, (b) the Base Interest Fraction for the related Principal Prepayment
and such Class of Certificates and (c) the aggregate amount of Prepayment
Premiums or Yield Maintenance Charges, as applicable, collected on such
Principal Prepayment during the related Due Period. Any Yield Maintenance
Charges or Prepayment Premiums collected during the related Collection
Period remaining after such distributions prior to the Distribution Date
in November 2013 will be distributed 90% to the holders of the Class XS
Certificates and 10% to the holders of the Class XP Certificates. After
the Distribution Date occurring in October 2013, 100% of all Yield
Maintenance Charges and Prepayment Premiums collected during the related
Collection Period remaining after such distributions will be distributed
to the Class X-S Certificates. No Prepayment Premiums or Yield Maintenance
Charges in respect of the Group 1 Mortgage Loans will be distributed to
holders of any other Class of Certificates; and
(ii) Prepayment Premiums and Yield Maintenance Charges received with
respect to the Group 2 Mortgage Loans shall be distributed to the Class
A-1S and Class A-1A Certificates, pro rata, in an amount equal to the
product of (a) a fraction, not greater than one, the numerator of which 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-1S and Class A-1A Certificates on such Distribution Date,
(b) the Base Interest Fraction for the related Principal Prepayment and
such Class of Certificates and (c) the aggregate amount of Prepayment
Premiums or Yield Maintenance Charges, as applicable, collected on such
Principal Prepayment during the related Due Period. Any Yield Maintenance
Charges or Prepayment Premiums collected during the related Collection
Period remaining after such distributions prior to the Distribution Date
in November 2013 will be distributed 90% to the holders of the Class XS
Certificates and 10% to the holders of the Class XP Certificates. After
the Distribution Date occurring in October 2013, 100% of all Yield
Maintenance Charges and Prepayment Premiums collected during the related
Collection Period remaining after such distributions will be distributed
to the Class X-S Certificates. No Prepayment Premiums or Yield Maintenance
Charges in respect of the Group 2 Mortgage Loans will be distributed to
holders of any other Class of Certificates.
Following the reduction of the Certificate Balances of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5, Class
A-1A, Class A-1S, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J and Class K Certificates to zero, the Trustee shall distribute any Yield
Maintenance Charges or Prepayment Premiums collected during the related
Collection Period remaining after such distributions prior to the Distribution
Date in November 2013 shall be distributed 90% to the holders of the Class XS
Certificates and 10% to the holders of the Class XP Certificates. After the
Distribution Date occurring in October 2013, 100% of all Yield Maintenance
Charges and Prepayment Premiums collected during the related Collection Period
remaining after such distributions will be distributed to the Class X-S
Certificates.
Any Yield Maintenance Charge that is to be distributed to the
Regular Certificates on any Distribution Date shall be deemed distributed from
the Lower-Tier REMIC to the Upper-Tier REMIC in respect of the Corresponding
Lower-Tier Regular Interest(s) then receiving a principal distribution, pro
rata.
(d) [Reserved]
(e) On each Distribution Date, the Trustee shall withdraw amounts
from the Excess Liquidation Proceeds Account (or sub-account thereof) and shall
distribute such amounts in the following manner:
(i) (A) from amounts in the Excess Liquidation Proceeds Account
allocable to a Mortgage Loan (other than the Serviced Whole Loan), to
reimburse the Holders of the Principal Balance Certificates (in the order
set forth in Section 4.01(b)) up to an amount equal to all Realized Losses
and Additional Trust Fund Expenses, if any, previously allocated to them
and unreimbursed after application of Available Funds for such
Distribution Date and (B) from amounts in the Excess Liquidation Proceeds
Account allocable to the Serviced Whole Loans, to reimburse the Holders of
the Principal Balance Certificates (in the order set forth in Section
4.01(b)) and any related Pari Passu Companion Loans, with respect to
amounts allocable to the Serviced Whole Loans on a pro rata basis based on
the Mortgage Loan's Stated Principal Balance, up to an amount equal to all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to them and unreimbursed after application of Available Funds
for such Distribution Date and any remaining amounts to the related
Serviced B Loans, if any; and
(ii) any amounts remaining in the Excess Liquidations Proceeds
Account after such distributions on any Distribution Date that (a) are
allocable to the Mortgage Loans, shall be applied to offset future
Realized Losses and Additional Trust Fund Expenses and, upon termination
of the Trust Fund, any amounts remaining in the Excess Liquidations
Proceeds Account (other than amounts allocable to the Serviced Whole
Loans) shall be distributed by the Trustee to the Class LR Certificates;
and (b) are allocable to the Serviced Companion Loans, shall be remitted
within one Business Day after each such Distribution Date by the Trustee
to the Master Servicer (which shall remit to the Serviced Companion Loan
Noteholders in accordance with Section 3.05(i)).
Amounts paid with respect to the Mortgage Loans from the Excess
Liquidation Proceeds Account pursuant to the preceding clauses (i) and
(ii) shall first be deemed to have been distributed to the Lower-Tier
Regular Interests in reimbursement of Realized Losses and Additional Trust
Fund Expenses previously allocated thereto in the same manner as provided
in Section 4.01(f). Amounts paid from the Excess Liquidation Proceeds
Account will not reduce the Certificate Balances of the Principal Balance
Certificates receiving such distributions.
(f) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to this Section 4.01(b), the
Trustee shall calculate the amount, if any, of Realized Losses. Any allocation
of Realized Losses to a Class of Principal Balance Certificates shall be made by
reducing the Certificate Balance thereof by the amount so allocated. Any
Realized Losses allocated to a Class of Principal Balance Certificates shall be
allocated among the respective Certificates of such Class in proportion to the
Percentage Interests evidenced thereby. The allocation of Realized Losses shall
constitute an allocation of losses and other shortfalls experienced by the Trust
Fund. Reimbursement of previously allocated Realized Losses 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 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 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 that previously were allocated Realized Losses, in
sequential order, in each case up to the amount of the unreimbursed Realized
Losses allocated to such Class. If the Certificate Balance of any Class is so
increased, the amount of unreimbursed Realized Losses of such Class shall be
decreased by such amount.
The Certificate Balances of each Class of Principal Balance
Certificates will be reduced without distribution on any Distribution Date as a
write-off to the extent of any Realized Losses allocated to such Class with
respect to such date. Any such write-offs will be applied to Classes of
Principal Balance Certificates in the following order, in each case until the
Certificate Balance of such Class is reduced to zero: first, to the Class S
Certificates, second, to the Class Q Certificates; third, to the Class P
Certificates; fourth, to the Class O Certificates; fifth, to the Class N
Certificates; sixth, to the Class M Certificates; seventh, to the Class L
Certificates; eighth, to the Class K Certificates; ninth, to the Class J
Certificates; tenth, to the Class H Certificates; eleventh, to the Class G
Certificates; twelfth, to the Class F Certificates; thirteenth, to the Class E
Certificates; fourteenth, to the Class D Certificates; fifteenth, to the Class C
Certificates; sixteenth, to the Class B Certificates, seventeenth, to the Class
A Combined Certificates and the Class A-1A Certificates, pro rata, with the
amount allocated to the Class A Combined Certificates being applied first, to
the Class A-J Certificates; second, to the Class A-M Certificates; and finally,
to the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-5, Class A-1A and Class A-1S Certificates, pro rata, based on their respective
Certificate Balances. Any amounts recovered in respect of amounts previously
written off as Realized Losses shall be distributed to the Classes of Principal
Balance Certificates described above in reverse order of allocation of Realized
Losses thereto in accordance with Section 4.01(b). Additional Trust Fund
Expenses and shortfalls in Available Funds due to extraordinary expenses of the
Trust Fund (including indemnification expenses), a reduction in the Mortgage
Rate on a Mortgage Loan by a bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its equitable powers, or otherwise, shall
be treated as and allocated in the same manner as Realized Losses.
Realized Losses, Additional Trust Fund Expenses and such other
amounts described above which are applied to each Class of Principal Balance
Certificates will be allocated to reduce the Lower-Tier Principal Balance(s) of
the Corresponding Lower-Tier Regular Interests in the same manner as principal
is allocated thereto pursuant to Section 4.01(a)(ii); and revenues are applied
to the Corresponding Lower-Tier Interests in a similar manner.
(g) All amounts distributable to a Class of Certificates pursuant to
this Section 4.01 on each Distribution Date shall be allocated pro rata among
the outstanding Certificates in each such Class based on their respective
Percentage Interests. Such distributions shall be made on each Distribution Date
other than the Termination Date to each Certificateholder of record on the
related Record Date, by wire transfer of immediately available funds to the
account of such Holder at a bank or other entity located in the United States
and having appropriate facilities therefor provided that such Holder shall have
provided the Paying Agent with wire instructions in writing at least five
Business Days prior to the related Record Date, or, otherwise, by check mailed
by first-class mail to the address set forth therefor in the Certificate
Register. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) that is specified in the notice to
Holders of such final distribution.
(h) Except as otherwise provided in Section 9.01 with respect to an
Anticipated Termination Date, the Trustee shall, as soon as reasonably
practicable within the month preceding the month in which the final distribution
with respect to any Class of Certificates is expected to be made, mail to each
Holder of such Class of Certificates on such date a notice to the effect that:
(A) the Trustee reasonably expects based upon information
previously provided to it 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 office of the Trustee therein specified, and
(B) if such final distribution is made on such Distribution
Date, no interest shall accrue on such Certificates from and after
such Distribution Date;
provided, however, that the Class R and Class LR Certificates shall remain
outstanding until there is no other Class of Certificates or Lower-Tier Regular
Interests outstanding.
Any funds not distributed to any Holder or Holders of such Classes
of Certificates 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 in trust for the benefit of the appropriate non-tendering Holder or
Holders. If any Certificates as to which notice has been given pursuant to this
Section 4.01(h) shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Holders 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 Trustee may, directly or through an
agent, take appropriate steps to contact the remaining non-tendering Holders
concerning surrender of their Certificates. The costs and expenses of holding
such funds in trust and of contacting such Holders shall be paid out of such
funds. If within two years after the second notice any such Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Class R Certificateholders. No interest shall accrue or
be payable to any Holder on any amount held in trust hereunder or by the Trustee
as a result of such Holder's failure to surrender its Certificate(s) for final
payment thereof in accordance with this Section 4.01(h). Any such amounts
transferred to the Trustee may be invested in Permitted Investments and all
income and gain realized from investment of such funds shall accrue for its
benefit.
(i) Shortfalls in Available Funds resulting from Excess Prepayment
Interest Shortfalls shall be allocated to, and Servicer Prepayment Interest
Shortfalls shall be deemed distributed to, each Class of Regular Certificates,
pro rata, based upon the Interest Accrual Amount distributable to each such
Class prior to reduction by such Excess Prepayment Interest Shortfalls. Servicer
Prepayment Interest Shortfalls shall be deposited by the Master Servicer into
its Collection Account (or Serviced Whole Loan Collection Account with respect
to Serviced Whole Loans) fon or prior to the Servicer Remittance Date.
(j) On each Distribution Date, any Excess Interest received with
respect to the Mortgage Loans during the related Collection Period shall be
distributed to the Holders of the Class T Certificates from the Grantor Trust
Distribution Account established pursuant to Section 3.05(c). Any Excess
Interest remaining in the Grantor Trust Distribution Account on the final
Distribution Date shall be distributed to the Holders of the Class T
Certificates.
(k) On the final Servicer Remittance Date, the Master Servicer shall
withdraw from its Collection Account and deliver to the Trustee who shall
distribute to the Mortgage Loan Sellers, any Loss of Value Payments relating to
the Mortgage Loans that it is servicing transferred from the Loss of Value
Reserve Fund to the Collection Account on the immediately preceding Servicer
Remittance Date in accordance with Section 3.06(f)(v).
Section 4.02 Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and Others. (a) On each Distribution
Date, the Trustee shall make available to the general public a statement
(substantially in the form set forth as Exhibit K attached hereto and based on
the information set forth in (i) the CMSA Reporting Package prepared by the
Master Servicer (other than the Reconciliation of Funds Report and the CMSA
Special Servicer Defaulted Loan File) and the other reports prepared by the
Master Servicer and Special Servicer relating to such Distribution Date,
including the CMSA Special Servicer Defaulted Loan File, upon which information
the Trustee may conclusively rely, in accordance with CMSA guidelines and (ii)
the Reconciliation of Funds Report prepared by the Trustee) as to distributions
made on such Distribution Date (each, a "Distribution Date Statement") setting
forth (with respect to each Class of Certificates) the following information:
(i) the Record Date, Interest Accrual Period, and Determination Date
for such Distribution Date;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates (other than
the Class T, Class XS, Class XP, Class R and Class LR Certificates)
applied to reduce the respective Certificate Balance thereof;
(iii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates allocable
to (A) the Interest Accrual Amount and/or (B) Prepayment Premiums;
(iv) the aggregate amount of Advances made in respect of the
Distribution Date and the amount on interest paid on Advances since the
prior Distribution Date (including, to the extent material, the general
use of funds advanced and general source of funds for reimbursements);
(v) the aggregate amount of compensation paid to the Trustee and
servicing compensation paid to the Master Servicer and the Special
Servicer for the related Determination Date and any other fees or expenses
accrued and paid from the Trust Fund;
(vi) the aggregate Stated Principal Balance of the Mortgage Loans
and any REO Loans outstanding immediately before and immediately after the
Distribution Date;
(vii) the number (as of the related and the next preceding
Determination Date), and the aggregate principal balance, weighted average
remaining term to maturity and weighted average mortgage rate (and
interest rates by distributional groups or ranges) of the Mortgage Loans
as of the related Determination Date;
(viii) the number and aggregate Stated Principal Balance of the
Mortgage Loans or Serviced Whole Loans (A) delinquent 30-59 days, (B)
delinquent 60-89 days, (c) delinquent 90 days or more, (D) that are
Specially Serviced Loans that are not delinquent, or (E) current, but not
Specially Serviced, as to which foreclosure proceedings have been
commenced, but not REO Property;
(ix) the Available Funds for such Distribution Date, and any other
cash flows received on the mortgage loans and applied to pay fees and
expenses (including the components of the Available Funds, or such other
cash flows);
(x) the amount of the distribution on the Distribution Date to the
holders of any class of Certificates allocable to Prepayment Premiums or
Yield Maintenance Charges;
(xi) the accrued Interest Accrual Amount in respect of each Class of
Certificates for such Distribution Date;
(xii) the Pass-Through Rate for each class of Certificates for the
Distribution Date and the next succeeding Distribution Date;
(xiii) the Principal Distribution Amount for the Distribution Date;
(xiv) the aggregate Certificate Balance or aggregate Notional
Balance, as the case may be, of each Class of Certificates, before and
after giving effect to the distributions made on such Distribution Date,
separately identifying any reduction in the aggregate Certificate Balance
(or, if applicable, the aggregate Notional Balance) of each such Class due
to Realized Losses and/or Additional Trust Fund Expenses;
(xv) the fraction, expressed as a decimal carried to at least eight
places, the numerator of which is the then related Certificate Balance,
and the denominator of which is the related initial aggregate Certificate
Balance, for each class of Certificates (other than the Class T, Class R
and Class LR Certificates) immediately following the Distribution Date;
(xvi) the amount of any Appraisal Reduction Amounts allocated during
the related Collection Period on a loan-by-loan basis; the total Appraisal
Reduction Amounts allocated during the related Collection Period; and the
total Appraisal Reduction Amounts as of such Distribution Date on a
loan-by-loan basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans modified, extended or waived during the related Collection
Period, on a loan-by-loan basis (including a description of any material
modifications, extensions or waivers to Mortgage Loan terms, fees,
penalties or payments during the Collection Period or that have
cumulatively become material over time);
(xviii) the amount of any remaining unpaid Interest Shortfalls for
each Class of Certificates as of the Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment (other than Liquidation Proceeds and
Insurance Proceeds) during the related Collection Period and the amount of
Principal Prepayment occurring, together with the aggregate amount of
Principal Prepayments made during the related Collection Period and any
Excess Prepayment Interest Shortfall for such Distribution Date;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
during the related Collection Period;
(xxi) the amount of the distribution to the holders of each class of
Certificates on the Distribution Date attributable to reimbursement of
Realized Losses;
(xxii) as to any Mortgage Loan repurchased by a Mortgage Loan Seller
or otherwise liquidated or disposed of during the related Collection
Period, (A) the Loan Number of the related Mortgage Loan and (B) the
amount of proceeds of any repurchase of a Mortgage Loan, Liquidation
Proceeds and/or other amounts, if any, received thereon during the related
Collection Period and the portion thereof included in the Available Funds
for such Distribution Date;
(xxiii) the amount on deposit in each of the Interest Reserve
Account and the Excess Liquidation Proceeds Account before and after
giving effect to the distribution made on such Distribution Date (and any
material account activity since the prior Distribution Date) provided,
however, with respect to any account not maintained by the Trustee, only
to the extent the Trustee has received such information and instructions
to report such information from the party maintaining such account;
(xxiv) the original and then current credit support levels for each
class of Certificates;
(xxv) the then current ratings for each class of Certificates;
(xxvi) with respect to any REO Loan as to which the related
Mortgaged Property became an REO Property during the preceding calendar
month, the city, state, property type, latest Debt Service Coverage Ratio,
the current Stated Principal Balance and the Stated Principal Balance of
such Mortgage Loan as of the date each became an REO Loan;
(xxvii) with respect to any REO Property included in the Trust Fund
at the close of business on the related Due Date (A) the Loan Number of
the related Mortgage Loan, (B) the value of such REO Property based on the
most recent Appraisal or valuation;
(xxviii) with respect to any REO Property sold or otherwise disposed
of during the related Collection Period and for which a Final Recovery
Determination has been made, (A) the Loan Number of the related Mortgage
Loan, (B) the Realized Loss attributable to such Mortgage Loan, (C) the
amount of sale proceeds and other amounts, if any, received in respect of
such REO Property during the related Collection Period and the portion
thereof included in the Available Funds for such Distribution Date, (D)
the date of the Final Recovery Determination and (E) the balance of the
Excess Liquidations Proceeds Account for such Distribution Date; and
(xxix) the amount of the distribution on the Distribution Date to
the holders of the Class T and Residual Certificates;
(xxx) material breaches of mortgage loan representations and
warranties of which the Trustee, Master Servicers or the Special Servicer
has received written notice; and
(xxxi) the amount of Realized Losses, Additional Trust Fund Expenses
and Class Interest Shortfalls, if any, incurred with respect to the
Mortgage Loans during the related Collection Period and in the aggregate
for all prior Collection Periods (except to the extent reimbursed or
paid).
In the case of information furnished pursuant to subclauses (i),
(ii), (iii), (vi) and (xix) above, the amounts shall be expressed as a dollar
amount in the aggregate for all Certificates of each applicable Class and per
$1,000 of original Certificate Balance or Notional Balance, as the case may be.
On each Distribution Date, the Trustee shall make available to each
Holder of a Class R or Class LR Certificate a copy of the reports made available
to the other Certificateholders on such Distribution Date and a statement
setting forth the amounts, if any, actually distributed with respect to the
Class R or Class LR Certificates on such Distribution Date. Such obligation of
the Trustee shall be deemed to have been satisfied to the extent that it
provided substantially comparable information pursuant to any requirements of
the Code as from time to time in force.
Within a reasonable period of time after the end of each calendar
year, upon request, the Trustee shall furnish to each Person who at any time
during the calendar year was a Certificateholder of record, a report summarizing
on an annual basis (if appropriate) the items provided to Certificateholders
pursuant to clauses (i) and (ii) 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 may be required
to enable such Certificateholders to prepare their federal income tax returns.
Such information shall include the amount of original issue discount accrued on
each Class of Certificates held by Persons other than Holders exempted from the
reporting requirements and information regarding the expenses of the Trust Fund.
Such requirement shall be deemed to be satisfied to the extent such information
is provided pursuant to applicable requirements of the Code from time to time in
force.
(b) [Reserved]
(c) On each Distribution Date, the Trustee shall make available to
the general public via its internet website located at "xxx.xxxxxxxx.xxx" (i)
the related Distribution Date Statement (in the form of Exhibit K, attached
hereto), (ii) to the extent received from the Master Servicer, the CMSA Loan
Periodic Update File (including the Advance Recovery Report), CMSA Loan Setup
File, CMSA Bond Level File and CMSA Collateral Summary File, (iii) as a
convenience (and not in furtherance of the distribution thereof under the
securities laws), the Prospectus and this Agreement and any other information
requested by the Depositor and (iv) any reports on Forms 10-D, 10K and 8-K that
have been filed with respect to the Trust through the XXXXX system (to the
extent prepared by the Trustee and within one Business Day of filing).
(d) On each Distribution Date beginning in November 2006, the
Trustee shall make available to any Privileged Person via its internet website
(as described above), to the extent received from the Master Servicer, to any
Privileged Person, the Underwriters and the Initial Purchasers via its internet
website, the CMSA Supplemental Servicer Reports, the CMSA Property File, the
CMSA Financial File and any other information requested by the Depositor. The
information that pertains to Specially Serviced Loans and REO Properties
reflected in such reports shall be based solely upon the reports delivered by
the Special Servicer to the Master Servicer four Business Days prior to the
related Servicer Remittance Date.
(e) The information contained in the reports in the preceding
paragraph of this Section 4.02 shall be made available to the Trustee
electronically by the Master Servicer, if applicable, in the form of, or
reflected in, the CMSA Reporting Package and the CMSA Reports, and the Trustee
will make such reports and the Reconciliation of Funds Report available via its
internet website (as described above); provided, however, that the Trustee will
provide Certificateholders with a written copy of such reports upon request in
the manner described in such preceding paragraph.
(f) The Trustee 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 Trustee may disclaim responsibility for any information
distributed by it for which it is not the original source. The Trustee shall not
be responsible for the accuracy or completeness of any information supplied to
it by a Master Servicer or Special Servicer that is included in any reports,
statements, materials or information prepared or provided by the Master Servicer
or Special Servicer, as applicable, and the Trustee shall be entitled to
conclusively rely upon the Master Servicer's reports and the Special Servicer's
reports without any duty or obligation to recompute, verify or re-evaluate any
of the amounts or other information stated therein. In connection with providing
access to the Trustee's Internet website, the Trustee may require registration
and the acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance herewith.
(g) The Master 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) the CMSA Reporting
Package (including the Reconciliation of Funds Report and the CMSA Special
Servicer Defaulted Loan File prepared by the Trustee and the Special Servicer
respectively) and any other reports or other information the Master Servicer is
required or permitted to provide to any party to this Agreement, the Rating
Agencies, any Serviced Companion Loan Noteholder or any Certificateholder or
prospective Certificateholder 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 its Internet website, the Master Servicer
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. Neither Master
Servicer shall 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. The Master Servicer 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, the Master Servicer
may, at its sole cost and expense, make available by electronic media, bulletin
board service or Internet website any reports or other information the Master
Servicer is required or permitted to provide to any Borrower with respect to
such Borrower'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.
If the Master Servicer is required to deliver any statement, report or other
information under any provision of this Agreement, then, the Master Servicer 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) making such statement,
report or information available on its website, unless this Agreement expressly
specifies a particular method of delivery; provided that all reports required to
be delivered to the Trustee shall be delivered in accordance with clause (x) or
(y).
(h) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Master Servicer) provide the Master
Servicer with such information in its possession regarding the Specially
Serviced Loans and REO Properties as may be reasonably necessary for the Master
Servicer to prepare each report and any supplemental information to be provided
by the Master Servicer to the Trustee. Neither the Trustee nor the Depositor
shall have any obligation to recompute, verify or recalculate the information
provided thereto by the Master Servicer. Unless the Trustee has actual knowledge
that any report or file received from the Master Servicer contains erroneous
information, the Trustee is authorized to rely thereon in calculating and making
distributions to Certificateholders and allocating Realized Losses to the
Certificates in accordance with Section 4.01 and preparing the statements to
Certificateholders required by Section 4.02(a).
(i) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Trustee shall provide the
requesting Certificateholder with such information that is in the Trustee's
possession or can reasonably be obtained by the Trustee as is requested by such
Certificateholder, for purposes of satisfying applicable reporting requirements
under Rule 144A under the Securities Act. Neither the Certificate Registrar 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.
(j) The Trustee shall make available at its offices, during normal
business hours, upon not less than two Business Day's prior notice, for review
by any Certificateholder, any prospective investor in a Certificate or any
Serviced Companion Loan Noteholder (or any registered holder or beneficial owner
of Companion Loan Securities) (with respect to items (iv) - (vii), only to the
extent such information relates to the related Serviced Companion Loan), the
Depositor, the Master Servicer, the Special Servicer, any Rating Agency and any
other Person to whom the Depositor in its sole judgment, deems that such
disclosure is appropriate, originals or copies of documents relating to the
Mortgage Loans and any related REO Properties to the extent in its possession,
including, without limitation, the following items (except to the extent
prohibited by applicable law or under any of the related Loan Documents): (i)
this Agreement and any amendments thereto; (ii) all Distribution Date Statements
delivered to the Certificateholders and any Companion Loan Noteholder since the
Closing Date; (iii) all annual Officer's Certificates and all accountants'
reports delivered by the Master Servicer and the Special Servicer to the Trustee
since the Closing Date regarding compliance with the relevant agreements; (iv)
the most recent property inspection report prepared by or on behalf of the
Master Servicer or the Special Servicer in respect of each Mortgaged Property
and delivered to the Trustee; (v) the most recent annual (or more frequent, if
available) operating statements, rent rolls (to the extent such rent rolls have
been made available by the related Borrower) and/or lease summaries and retail
sales information, if any, collected by or on behalf of the Master Servicer or
the Special Servicer in respect to each Mortgaged Property; (vi) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan or
Serviced Whole Loan entered into by the Master Servicer and/or the Special
Servicer and delivered to the Trustee; and (vii) any and all Officer's
Certificates and other evidence delivered to or by the Trustee to support the
Master Servicer's or the Special Servicer's, as the case may be, determination
that any Advance, if made, would be a Nonrecoverable Advance. Copies of any and
all of the foregoing items will be available from the Trustee upon request. The
Trustee will be permitted to require payment by the requesting party (other than
a Rating Agency) of a sum sufficient to cover the reasonable costs and expenses
of making such information available and providing any copies thereof. The
Trustee's obligation under this Section 4.02(j) to make available any document
is subject to the Trustee's receipt of such document.
(k) On or within two Business Days following each Distribution Date,
the Trustee shall prepare and make available or furnish via its internet website
at "xxx.xxxxxxxx.xxx" to the Financial Market Publisher and each Underwriter,
the following information regarding each Mortgage Loan and any other information
reasonably requested by each Underwriter and available to the Trustee:
(i) the Loan Number;
(ii) each related Mortgage Rate; and
(iii) the Stated Principal Balance as of such Distribution Date.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by Section 4.02 to the extent it receives the necessary
underlying information from the Master Servicer or the Special Servicer and
shall not be liable for any failure to deliver any thereof on the prescribed due
dates, to the extent caused by failure to receive timely such underlying
information. Nothing herein shall obligate the Trustee, the Master Servicer or
the Special Servicer to violate any applicable law prohibiting disclosure of
information with respect to any Borrower and the failure of the Trustee, the
Master Servicer or the Special Servicer to disseminate information for such
reason shall not be a breach hereof.
Section 4.03 Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying Agent shall
comply with all federal withholding requirements with respect to payments to
Certificateholders of interest or original issue discount that the Paying Agent
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Holder that is a non-U.S. Person that
has furnished or caused to be furnished (i) an effective Form W-8BEN, Form
W-8IMY or Form W-9 or an acceptable substitute form or a successor form and who
is not a "10-percent shareholder" within the meaning of Code Section
871(h)(3)(B) or a "controlled foreign corporation" described in Code Section
881(c)(3)(c) with respect to the Trust Fund or the Depositor, or (ii) an
effective Form W-8ECI or an acceptable substitute form or a successor form. In
the event the Paying Agent or its agent withholds any amount from interest or
original issue discount payments or advances thereof to any Certificateholder
pursuant to federal withholding requirements, the Paying Agent shall indicate
the amount withheld to such Certificateholder. Any amount so withheld shall be
treated as having been distributed to such Certificateholder for all purposes of
this Agreement.
Section 4.04 REMIC Compliance. (a) The parties intend that the
Lower-Tier REMIC and the Upper-Tier REMIC shall constitute, and that the affairs
of each of the Lower-Tier REMIC and the Upper-Tier REMIC shall be conducted so
as to qualify it as, a "real estate mortgage investment conduit" as defined in,
and in accordance with, the REMIC Provisions at all times any Certificates are
outstanding, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall, to the
extent permitted by applicable law, act as agent, and is hereby appointed to act
as agent, of each such REMIC and shall on behalf of each such REMIC:
(i) make an election, on behalf of each of the Lower-Tier REMIC and
the Upper-Tier REMIC to be treated as a REMIC on Form 1066 for its first
taxable year, in accordance with the REMIC Provisions;
(ii) prepare and file, or cause to be prepared and filed, all
required Tax Returns for the Lower-Tier REMIC and the Upper-Tier REMIC,
using a calendar year as the taxable year for each of such REMIC as
required by the REMIC Provisions and other applicable federal, state or
local income tax laws;
(iii) prepare and forward, or cause to be prepared and forwarded, to
the Certificateholders and the IRS and applicable state and local tax
authorities all information reports as and when required to be provided to
them in accordance with the REMIC Provisions of the Code;
(iv) if the filing or distribution of any documents of an
administrative nature not addressed in clauses (i) through (iii) of this
Section 4.04(a) is then required by the REMIC Provisions in order to
maintain the status of the Lower-Tier REMIC and the Upper-Tier REMIC as a
REMIC or is otherwise required by the Code, prepare and file or
distribute, or cause to be prepared and signed and filed or distributed,
such documents with or to such Persons when and as required by the REMIC
Provisions or the Code or comparable provisions of state and local law;
(v) within 30 days of the Closing Date, obtain a taxpayer
identification number for each of Lower-Tier REMIC and the Upper-Tier
REMIC on IRS Form SS-4 and (in the case of the Upper-Tier REMIC only),
furnish or cause to be furnished to the IRS, on Form 8811 or as otherwise
may be required by the Code, the name, title and address of the person
that the Certificateholders may contact for tax information relating
thereto (and the Trustee shall act as the representative of the Upper-Tier
REMIC for this purpose), together with such additional information as may
be required by such Form, and shall update such information at the time or
times and in the manner required by the Code (and the Depositor agrees
within 10 Business Days of the Closing Date to provide any information
reasonably requested by the Master Servicer, the Special Servicer or the
Trustee and necessary to make such filing); and
(vi) maintain such records relating to the Lower-Tier REMIC and the
Upper-Tier REMIC as may be necessary to prepare the foregoing returns,
schedules, statements or information, such records, for federal income tax
purposes, to be maintained on a calendar year and on an accrual basis.
The Holder of the largest Percentage Interest in the Class R
Certificates shall be the tax matters person of the Upper-Tier REMIC, and the
Holder of the largest Percentage Interest in the Class LR Certificates shall be
the tax matters persons of the Lower-Tier REMIC pursuant to Treasury Regulations
Section 1.860F-4(d). The Trustee shall sign all Tax Returns and other reports
required by this Section 4.04 and promptly either file them or do as otherwise
provided by this Section. If more than one Holder shall hold an equal Percentage
Interest in the Class R or Class LR Certificates larger than that held by any
other Holder, the first such Holder to have acquired such Class R or Class LR
Certificates shall be such tax matters person. The Trustee shall act as
attorney-in-fact and agent for the tax matters person of the Lower-Tier REMIC
and the Upper-Tier REMIC, and each Holder of a Percentage Interest in the Class
R or Class LR Certificates, by acceptance hereof, is deemed to have consented to
the Trustee's appointment in such capacity and agrees to execute any documents
required to give effect thereto, and any fees and expenses incurred by the
Trustee in connection with any audit or administrative or judicial proceeding
shall be paid by the Trust Fund.
The Trustee shall not intentionally take any action or intentionally
omit to take any action if, in taking or omitting to take such action, the
Trustee knows that such action or omission (as the case may be) would cause the
termination of the REMIC status of the Lower-Tier REMIC or the Upper-Tier REMIC
or the imposition of tax on the Lower-Tier REMIC or the Upper-Tier REMIC (other
than a tax on income expressly permitted to be received by the terms of this
Agreement). Notwithstanding any provision of this paragraph to the contrary, the
Trustee shall not be required to take any action that the Trustee in good faith
believes to be inconsistent with any other provision of this Agreement, nor
shall the Trustee be deemed in violation of this paragraph if it takes any
action expressly required or authorized by any other provision of this
Agreement, and the Trustee shall have no responsibility or liability with
respect to any act or omission of the Depositor, the Master Servicer or the
Special Servicer which does not enable the Trustee to comply with any of clauses
(i) through (vi) of the first paragraph of this Section 4.04(a) or which results
in any action contemplated by clauses (i) or (ii) of the next succeeding
sentence. In this regard the Trustee shall (i) exercise reasonable care not to
allow the occurrence of any "prohibited transactions" within the meaning of Code
Section 860F(a), unless the party seeking such action shall have delivered to
the Trustee an Opinion of Counsel (at such party's expense) that such occurrence
would not (A) result in a taxable gain, (B) otherwise subject the Lower-Tier
REMIC or the Upper-Tier REMIC to tax (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property), or (c) cause the
Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC; and (ii)
exercise reasonable care not to allow the Trust Fund to receive any
contributions, or any income from the performance of services or from assets not
permitted under the REMIC Provisions to be held by a REMIC (provided, however,
that the receipt of any income expressly permitted or contemplated by the terms
of this Agreement shall not be deemed to violate this clause). The Master
Servicer, the Special Servicer and the Depositor shall not be responsible or
liable (except in connection with any act or omission referred to in the two
preceding sentences or the following sentence) for any failure by the Trustee to
comply with the provisions of this Section 4.04. The Depositor, the Master
Servicer and the Special Servicer shall cooperate in a timely manner with the
Trustee in supplying any information within the Depositor's, the Master
Servicer's or the Special Servicer's control (other than any confidential
information) that is reasonably necessary to enable the Trustee to perform its
duties under this Section 4.04.
(b) The following assumptions are to be used for purposes of
determining the anticipated payments of principal and interest for calculating
the original yield to maturity and original issue discount with respect to the
Regular Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans will prepay in accordance with
the Prepayment Assumption; (ii) none of the Sole Certificateholder, the Master
Servicer, the Special Servicer and the Certificateholder owning a majority of
the Percentage Interests in the Controlling Class will exercise the right
described in Section 9.01 of this Agreement to cause early termination of the
Trust Fund; and (iii) no Mortgage Loan is repurchased by a Mortgage Loan Seller
pursuant to Article II hereof.
Section 4.05 Imposition of Tax on the Trust Fund. In the event that
any tax, including interest, penalties or assessments, additional amounts or
additions to tax, is imposed on the Upper-Tier REMIC or the Lower-Tier REMIC,
such tax shall be charged against amounts otherwise distributable to the Holders
of the Certificates; provided, that any taxes imposed on any net income from
foreclosure property pursuant to Code Section 860G(d) or any similar tax imposed
by a state or local jurisdiction shall instead be treated as an expense of the
related REO Property in determining Net REO Proceeds with respect to the REO
Property (and until such taxes are paid, the Special Servicer from time to time
shall withdraw from amounts in the REO Account (and, in the case of any Serviced
Whole Loans, from amounts in the Serviced Whole Loan REO Account) allocable to
the Mortgage Loans and transfer to the Trustee amounts reasonably determined by
the Trustee to be necessary to pay such taxes, which the Trustee shall maintain
in a separate, non-interest-bearing account, and the Trustee shall send to the
Special Servicer for deposit in the REO Account (or, if applicable, the Serviced
Whole Loan REO Account) the excess determined by the Trustee from time to time
of the amount in such account over the amount necessary to pay such taxes) and
shall be paid therefrom; provided that any such tax imposed on net income from
foreclosure property that exceeds the amount in any such reserve shall be
retained from Available Funds as provided in Section 3.06(b)(xiii) or, in the
case of any Serviced Whole Loans, in Section 3.06(c)(xiii), and the next
sentence. Except as provided in the preceding sentence, the Trustee is hereby
authorized to and shall retain or cause to be retained from Available Funds
sufficient funds to pay or provide for the payment of, and to actually pay, such
tax as is legally owed by the applicable REMIC (but such authorization shall not
prevent the Trustee from contesting, at the expense of the Trust Fund that (any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Trustee is
hereby authorized to and shall segregate or cause to be segregated, into a
separate non-interest bearing account, (i) the net income allocable to the
Mortgage Loans from any "prohibited transaction" under Code Section 860F(a) or
(ii) the amount of any contribution to the Lower-Tier REMIC or the Upper-Tier
REMIC after the Startup Day that is subject to tax under Code Section 860G(d)
and use such income or amount, to the extent necessary, to pay such tax (and
return the balance thereof, if any, to the Collection Account , the Lower-Tier
Distribution Account or the Upper-Tier Distribution Account, as the case may
be). To the extent that any such tax is paid to the IRS, the Trustee shall
retain an equal amount from future amounts otherwise distributable to the
Holders of the Class R or the Class LR Certificates, as the case may be, and
shall distribute such retained amounts to the Holders of Regular Certificates,
or the Trustee as Holder of the Lower-Tier Regular Interests, until they are
fully reimbursed and then to the Holders of the Class R Certificates or the
Class LR Certificates, as applicable. Neither the Master Servicer, the Special
Servicer nor the Trustee shall be responsible for any taxes imposed on the
Lower-Tier REMIC or the Upper-Tier REMIC except to the extent such tax is
attributable to a breach of a representation or warranty or the gross negligence
or willful misconduct of the Master Servicer, the Special Servicer or the
Trustee or an act or omission of the Master Servicer, the Special Servicer or
the Trustee in contravention of this Agreement, provided, further, that such
breach, act or omission could result in liability under Section 6.03, in the
case of either Master Servicer or Section 4.04 or 8.01, in the case of the
Trustee. Notwithstanding anything in this Agreement to the contrary, in each
such case, the Master Servicer or the Special Servicer shall not be responsible
for Trustee's breaches, acts or omissions, and the Trustee shall not be
responsible for the breaches, acts or omissions of the Master Servicer or the
Special Servicer.
Section 4.06 Remittances. (a) "Applicable Monthly Payment" shall
mean, for any Mortgage Loan with respect to any month, (A) if such Mortgage Loan
is delinquent as to its Balloon Payment (including any such Mortgage Loan as to
which the related Mortgaged Property has become an REO Property), the related
Assumed Scheduled Payment, and (B) if such Mortgage Loan is not described in
clause (A) above (including any such Mortgage Loan as to which the related
Mortgaged Property has become an REO Property), the Monthly Payment (after
giving effect to any modification other than as described in (A) above);
provided, however, that for purposes of calculating the amount of any P&I
Advance required to be made by the Master Servicer or the Trustee,
notwithstanding the amount of such Applicable Monthly Payment, interest shall be
calculated at the Net Mortgage Pass-Through Rate (plus the Trustee Fee Rate).
The Applicable Monthly Payment shall be reduced, for purposes of P&I Advances,
by any modifications pursuant to Section 3.31, Section 3.32 or Section 3.34, as
applicable, or otherwise and by any reductions by a bankruptcy court pursuant to
a plan of reorganization or pursuant to any of its equitable powers.
(b) On the Servicer Remittance Date immediately preceding each
Distribution Date, the Master Servicer with respect to the Mortgage Loans that
it is servicing shall:
(i) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to Prepayment Premiums and Yield Maintenance
Charges, and for deposit in accordance with Section 3.05(j) Excess
Liquidation Proceeds, in each case received by the Master Servicer in its
Collection Period preceding such Distribution Date;
(ii) remit to the Trustee for deposit in the Lower-Tier Distribution
Account an amount equal to the aggregate of the Available Funds for such
Distribution Date; and
(iii) remit to the Trustee for deposit in the Grantor Trust
Distribution Account an amount equal to the Excess Interest for the
benefit of the Class T Certificateholders received by the Master Servicer
in the Collection Period preceding such Distribution Date.
Section 4.07 P&I Advances. (a) On or before 1:00 p.m. (New York City
time) on each Servicer Remittance Date, the Master Servicer shall in the case of
all Mortgage Loans (including, for this purpose, the ShopKo Portfolio Mortgage
Loan) either (i) remit to the Trustee 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 Collection Account or the applicable Serviced
Whole Loan Collection Account, as applicable, for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make P&I Advances; provided that such amounts in the applicable Serviced Whole
Loan Collection Account shall only be applied up to the related Mortgage Loan's
pro rata share of the amounts held therein on such date 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 by the Master Servicer. Any amounts held in
the Collection Account or any Serviced Whole Loan Collection Account, as
applicable, for future distribution and so used to make P&I Advances shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Collection Account or the applicable Serviced
Whole Loan Collection Account, as applicable, on or before the next succeeding
P&I Advance Determination 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). The Master Servicer shall notify
the Trustee 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 the P&I Advance Determination Date. If the Master Servicer
fails to make a required P&I Advance by 1:00 p.m. (New York City time) on any
Servicer Remittance Date, then the Trustee shall make such P&I Advance pursuant
to Section 7.06 by 12:00 noon (New York City time) on the related Distribution
Date, in each case unless the Master Servicer shall have cured such failure (and
provided written notice of such cure to the Trustee) by 11:00 a.m. (New York
City time) on such Distribution Date or the Trustee determines that such P&I
Advance, if made, would be a Nonrecoverable Advance. Neither the Master Servicer
nor the Trustee shall be required to make P&I Advances on any Companion Loan.
(b) Subject to Sections 4.07(c) and 4.07(e) below, the aggregate
amount of P&I Advances to be made by the Master Servicer with respect to any
Distribution Date shall equal the aggregate of: (i) all Monthly Payments (in
each case, net of related Servicing Fees) other than Balloon Payments, that were
due during the related Collection Period and delinquent as of the close of
business on the P&I Advance Determination Date (or not advanced by the Master
Servicer or any sub-servicer on behalf of the Master Servicer) with respect to
the Mortgage Loans that it is servicing and (ii) with respect to each Mortgage
Loan that the Master Servicer is servicing and as to which the related Balloon
Payment was due during or prior to the related Collection Period and was
delinquent (including any applicable grace period) as of the end of the related
Collection 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 the Master Servicer to make
such P&I Advances, with respect to the Mortgage Loans that it is servicing, is
mandatory, and with respect to any applicable Mortgage Loan or REO Loan, shall
continue until the Distribution Date on which Liquidation Proceeds or REO
Proceeds, if any, are to be distributed.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required hereunder if the Master Servicer, the Special Servicer or the
Trustee, as applicable, determines that such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In addition, the Master Servicer shall
not make any P&I Advance to the extent that it has received written notice that
the Special Servicer has determined that such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. In making such recoverability
determination, the Master Servicer, the Special Servicer and the Trustee, as
applicable, will be entitled to (i) give due regard to the existence of any
Nonrecoverable Advance or Workout-Delayed Reimbursement Amount with respect to
other Mortgage Loans, the recovery of which, at the time of such consideration,
is being deferred or delayed by the Master Servicer or the Trustee, as
applicable, in light of the fact that proceeds on the related Mortgage Loan are
a source of recovery not only for the P&I Advance under consideration, but also
as a potential source of recovery of such Nonrecoverable Advance or
Workout-Delayed Reimbursement Amount which is being or may be deferred or
delayed and (ii) consider (among other things) the obligations of the Borrower
under the terms of the related Mortgage Loan (or the related Serviced Whole
Loan, as applicable) 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 applicable Servicing Standard in the case of the Master Servicer and
the Special Servicer) regarding the possibility and effects of future adverse
change with respect to such Mortgaged Properties, to estimate and consider
(consistent with the applicable Servicing Standard in the case of the Master
Servicer and the Special Servicer) (among other things) future expenses and to
estimate and consider (among other things) the timing of recoveries.
The Master Servicer, the Special Servicer and the Trustee, as
applicable, shall consider Unliquidated Advances in respect of prior P&I
Advances for purposes of nonrecoverability determinations as if such
Unliquidated Advances were xxxxxxxxxxxx X&X Advances. None of the Master
Servicer or Trustee shall make any P&I Advances with respect to delinquent
amounts due on any Companion Loan. If an Appraisal of the related Mortgaged
Property shall not have been obtained within the prior 12 month period (and the
Master Servicer and the Trustee shall each request any such appraisal from the
Special Servicer prior to ordering an Appraisal pursuant to this sentence) or if
such an Appraisal shall have been obtained but as a result of unforeseen
occurrences, such Appraisal does not, in the good faith determination of the
Master Servicer, the Special Servicer or the Trustee, reflect current market
conditions, and the Master Servicer or the Trustee, as applicable, and the
Special Servicer cannot agree on the appropriate downward adjustment to such
Appraisal, the Master Servicer, the Special Servicer or the Trustee, as the case
may be, may, subject to its reasonable and good faith determination that such
Appraisal will demonstrate the nonrecoverability of the related Advance, obtain
an Appraisal for such purpose at the expense of the Trust Fund (and, in the case
of any Serviced Whole Loan, first of the related Serviced B Loan Noteholders, if
any, and second, to the extent such expense remains unpaid, of the Trust Fund
and Pari Passu Companion Loan in accordance with the related Co-Lender
Agreement). At the request of the Serviced Companion Loan Noteholders, the
Master Servicer, Special Servicer or Trustee, as applicable, shall send such
Appraisal demonstrating nonrecoverability to the related Serviced Companion Loan
Noteholders.
Any such determination by the Master Servicer or the Trustee that it
has made a Nonrecoverable P&I Advance or that any proposed P&I Advance, if made,
would constitute a Nonrecoverable P&I Advance shall be evidenced by a
certificate of a Servicing Officer delivered to the Trustee, the Special
Servicer, the related Serviced Companion Loan Noteholders and the Depositor and,
in the case of the Trustee, by a certificate of a Responsible Officer of the
Trustee, delivered to the Depositor, the Master Servicer and the Special
Servicer, which in each case sets forth such nonrecoverability determination and
the considerations of the Master Servicer or the Trustee, as applicable, forming
the basis of such determination (such certificate accompanied by, to the extent
available, income and expense statements, rent rolls, occupancy status, property
inspections and other information used by the Master Servicer or the Trustee, as
applicable, to make such determination, together with any existing Appraisal or
any Updated Appraisal); provided, however, that the Special Servicer may, at its
option, make a determination in accordance with the Servicing Standard, that any
P&I Advance previously made or proposed to be made is nonrecoverable and shall
deliver to the Master Servicer, the Trustee and the related Serviced Non-Trust
Companion Noteholders notice of such determination, together with a certificate
of a Servicing Officer and the supporting information described above. Any such
determination shall be conclusive and binding on the Master Servicer, the
Special Servicer and the Trustee.
Any such Person may update or change its recoverability
determinations at any time (but not reverse any other Person's determination
that a P&I Advance is a Nonrecoverable Advance) and (consistent with the
applicable Servicing Standard in the case of the Master Servicer or the Special
Servicer) may obtain, at the expense of the Trust Fund (and, in the case of any
Serviced Whole Loan, first of the related Serviced B Loan Noteholders, if any,
and second, to the extent such expense remains unpaid, of the Trust Fund and
Pari Passu Companion Loan in accordance with the related Co-Lender Agreement),
any analysis, Appraisals or market value estimates or other information for such
purposes. Absent bad faith, any such determination as to the recoverability of
any P&I Advance shall be conclusive and binding on the Certificateholders.
Notwithstanding the above, (i) the Trustee shall be entitled to rely
conclusively on any determination by the Master Servicer or the Special
Servicer, as applicable, that a P&I Advance, if made, would be a Nonrecoverable
P&I Advance and (ii) the Master Servicer will be entitled to rely conclusively
on any nonrecoverability determination of the Special Servicer. The Trustee, in
determining whether or not a P&I Advance previously made is, or a proposed P&I
Advance, if made, would be, a Nonrecoverable P&I Advance shall be subject to the
standards applicable to the Master Servicer hereunder. The Special Servicer
shall promptly furnish the Master Servicer and the Trustee with any information
in its possession regarding the Specially Serviced Loans and REO Properties as
each such party may reasonably request for purposes of making recoverability
determinations.
(d) In connection with the recovery of any P&I Advance out of the
Collection Account pursuant to Section 3.06(b) or any Serviced Whole Loan
Collection Account pursuant to Section 3.06(c), the Master Servicer shall be
entitled to pay itself or the Trustee, as the case may be (in reverse of such
order with respect to any Mortgage Loan or REO Property), out of any amounts
then on deposit in its Collection Account or the applicable Serviced Whole Loan
Collection Account (to the extent amounts therein relate to the Mortgage Loans,
taking into account the related Co-Lender Agreement), as applicable, interest at
the Advance 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 (or if
such P&I Advance was made prior to the end of any grace period applicable to the
subject delinquent Monthly Payment, for so long as such P&I Advance is
outstanding following the end of such grace period) with respect to the Mortgage
Loan that the Master Servicer is servicing. The Master Servicer shall reimburse
itself or the Trustee, as the case may be, for any outstanding P&I Advance as
soon as practicably possible after funds available for such purpose are
deposited in its Collection Account or the applicable Serviced Whole Loan
Collection Account with respect to the Mortgage Loan that the Master Servicer is
servicing.
Notwithstanding the foregoing, (i) neither the Master Servicer nor
the Trustee shall make an advance for Excess Interest, Yield Maintenance Charges
or Penalty Charges and (ii) the amount of any P&I Advance with respect to a
Mortgage Loan as to which there has been an Appraisal Reduction will be an
amount equal to the product of (i) the amount required to be advanced without
giving effect to this proviso and (ii) a fraction, the numerator of which is the
Stated Principal Balance of such Mortgage Loan as of the immediately preceding
Determination Date less any Appraisal Reduction Amount applicable to such
Mortgage Loan and the denominator of which is the Stated Principal Balance of
such Mortgage Loan as of such Determination Date. All P&I Advances for any
Mortgage Loans that have been modified shall be calculated on the basis of their
terms as modified.
The portion of any Insurance Proceeds and Net Liquidation Proceeds
in respect of a Mortgage Loan or any REO Loan allocable to principal shall equal
the total amount of such proceeds minus (i) any portion thereof payable to the
Master Servicer, the Special Servicer or the Trustee pursuant to this Agreement
and (ii) a portion thereof equal to the interest component of the Monthly
Payment(s), as accrued at the related Net Mortgage Rate from the date as to
which interest was last paid by the Borrower up to but not including the Due
Date in the Collection Period in which such proceeds are received; provided,
however, in the event that the interest portion(s) of one or more P&I Advances
with respect of such Mortgage Loan or REO Loan, as applicable, were reduced as a
result of an Appraisal Reduction Event, the amount of the Net Liquidation
Proceeds to be applied to interest shall be reduced by the aggregate amount of
such reductions and the portion of such Net Liquidation Proceeds to be applied
to principal shall be increased by such amount, and if the amount of the Net
Liquidation Proceeds to be applied to principal has been applied to pay the
principal of such Mortgage Loan or REO Loan in full, any remaining Net
Liquidation Proceeds shall then be applied to pay any remaining accrued and
unpaid interest of such Mortgage Loan or REO Loan.
(e) The Master Servicer or the Trustee, as applicable, shall be
entitled to the reimbursement of P&I Advances it makes to the extent permitted
pursuant to Section 3.06 of this Agreement together with any related Advance
Interest Amount in respect of such P&I Advances to the extent permitted pursuant
to Section 3.06 and the Master Servicer and the Special Servicer each hereby
covenants and agrees to promptly seek and effect the reimbursement of such
Advances from the related Borrowers to the extent permitted by applicable law
and the related Mortgage Loan and this Agreement.
Section 4.08 Grantor Trust Reporting. The parties intend that the
portions of the Trust Fund consisting of Excess Interest and proceeds thereof in
the Grantor Trust Distribution Account shall be treated as a "grantor trust"
under the Code, and the provisions thereof shall be interpreted consistently
with this intention. In furtherance of such intention, the Bond Administrator
shall file or cause to be filed with the IRS Form 1041 or such other form as may
be applicable and shall furnish or cause to be furnished to the Holders of the
Class T Certificates their allocable share of income with respect to Excess
Interest as such amounts are received. In addition, the Trustee shall maintain
adequate books and records to account for the separate entitlements of the
Lower-Tier REMIC and the Grantor Trust.
Section 4.09 Statements to Serviced Companion Loan Holders.
(a) With respect to each Serviced Whole Loan, to the extent the
required information is provided to the Master Servicer in a timely manner by
the Special Servicer, the Master Servicer shall prepare, or cause to be
prepared, on an ongoing basis a statement setting forth, to the extent
applicable to the Serviced Whole Loan:
(i) For each Serviced Companion Loan Holder, (A) the amount of the
distribution from the related Serviced Whole Loan Collection Account
allocable to principal and (B) separately identifying the amount of
scheduled principal payments, Balloon Payments, Principal Prepayments made
at the option of the Mortgagor or other Principal Prepayments (specifying
the reason therefor), net liquidation proceeds and foreclosure proceeds
included therein and information on distributions made with respect to the
related Mortgage Loan and the related Serviced Companion Loan;
(ii) For each Serviced Companion Loan Holder, the amount of the
distribution from the related Serviced Whole Loan Custodial Account
allocable to interest and the amount of Default Interest allocable to the
related Mortgage Loan and the related Serviced Companion Loan;
(iii) If the distribution to a Serviced Companion Loan Holder is
less than the full amount that would be distributable to such Serviced
Companion Loan Holder if there were sufficient amounts available therefor,
the amount of the shortfall and the allocation thereof between interest
and principal and the amount of the shortfall, if any, under the related
Mortgage Loan or the related Serviced Companion Loan;
(iv) The principal balance of the related Mortgage Loan and the
related Serviced Companion Loan, as applicable, after giving effect to the
distribution of principal on such Distribution Date; and
(v) The amount of the servicing fees paid to the Master Servicer and
the Special Servicer with respect to such Distribution Date, showing
separately the Special Servicing Fee, the Workout Fee and the Liquidation
Fee.
Not later than the earlier of (x) the Servicer Remittance Date and
(y) the applicable servicer remittance date under any applicable Serviced
Companion Loan Securitization Agreement, the Master Servicer shall make the
foregoing statement available (i) to the Depositor, the Rating Agencies, the
Trustee and the Special Servicer by any electronic means agreed upon by the
Master Servicer and the Person receiving such statement and (ii) to the Serviced
Companion Loan Holders by electronic means.
On the Business Day after each Determination Date, the Special
Servicer shall forward to the Master Servicer for each Serviced Whole Loan that
is a Specially Serviced Mortgage Loan, the CMSA Special Servicer Loan File and
any other information the Master Servicer requires to meet its reporting
obligations hereunder to the extent such file or information relates to the
related Serviced Whole Loan. The Master Servicer shall incorporate the CMSA
Special Servicer Loan File and any other information provided by the Special
Servicer into the reports it delivers to the Serviced Companion Loan
Noteholders.
(b) With respect to each Serviced Whole Loan, the Master Servicer
shall also make available to each Serviced Companion Loan Holder by electronic
means (commencing on the date such item is delivered to the Trustee) the
following reports (to the extent applicable to the Serviced Whole Loan): (i) the
CMSA Financial File, CMSA Loan Periodic Update File, CMSA Loan Set-Up File, CMSA
Property File, CMSA Comparative Financial Status Report, CMSA NOI Adjustment
Worksheet, CMSA Servicer Watch List and CMSA Operating Statement Analysis Report
delivered to the Trustee and (ii) the CMSA Delinquent Loan Status Report, CMSA
Historical Liquidation Report, CMSA Historical Loan Modification and Corrected
Mortgage Loan Report or CMSA REO Status Report.
(c) The Serviced Companion Loan Holders shall be entitled to
receive, upon request, a copy of any notice or report required to be delivered
(upon request or otherwise) to the Trustee with respect to the related Mortgage
Loan or any related REO Property by any other party hereto. Any such other party
shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates. (a) The Certificates consist of the
Class A-1 Certificates, the Class A-1D Certificates, the Class A-2 Certificates,
the Class A-3 Certificates, the Class A-AB Certificates, the Class A-4
Certificates, the Class A-5 Certificates, the Class A-1A Certificates, the Class
A-1S Certificates, the Class XS Certificates, the Class XP Certificates, the
Class A-M Certificates, the Class A-J Certificates, the Class B Certificates,
the Class C Certificates, the Class D Certificates, the Class E Certificates,
the Class F Certificates, the Class G Certificates, the Class H Certificates,
the Class J Certificates, the Class K Certificates, the Class L Certificates,
the Class M Certificates, the Class N Certificates, the Class O Certificates,
the Class P Certificates, the Class Q Certificates, the Class S Certificates,
the Class T Certificates, the Class R Certificates and the Class LR
Certificates.
The Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class
A-4, the Class A-5 Certificates, Class A-1A, Class A-1S, Class XS, Class XP,
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 O, Class P, Class Q,
Class S, Class T, Class R and Class LR Certificates will be substantially in the
forms annexed hereto as Exhibits A-1 through A-30, as set forth in the Table of
Exhibits hereto. The Certificates of each Class will be issuable in registered
form only, in minimum denominations of authorized Certificate Balance or
Notional Balance, as applicable, as described in the succeeding table, and
multiples of $l in excess thereof (or such lesser amount if the Certificate
Balance or Notional Balance, as applicable, is not a multiple of $1). 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) in the case of any Global Certificate, set forth on a schedule attached
thereto or, in the case of any beneficial interest in a Global Certificate, the
amount set forth on the books and records of the related Depository Participant
or Indirect Participant, as applicable, (ii) expressed in terms of Certificate
Balance or Notional Balance, as applicable, and (iii) be in an authorized
denomination, as set forth below.
Aggregate
Denomination
of all
Minimum Certificates
Class Denomination of Class
----- ------------ --------------
A-1 $10,000 $78,000,000
A-1D $10,000 $55,000,000
A-2 $10,000 $23,700,000
A-3 $10,000 $97,400,000
A-AB $10,000 $89,230,000
A-4 $10,000 $127,000,000
A-5 $10,000 $1,410,219,000
A-1A $10,000 $204,985,000
A-1S $10,000 $204,985,000
XS $1,000,000 $3,571,360,872
XP $1,000,000 $3,504,824,000
A-M $10,000 $335,076,000
A-J $10,000 $276,438,000
B $25,000 $22,394,000
C $25,000 $53,746,000
D $25,000 $31,351,000
E $25,000 $22,394,000
F $25,000 $26,873,000
G $25,000 $44,788,000
H $25,000 $40,309,000
J $25,000 $40,310,000
K $25,000 $40,309,000
L $25,000 $13,436,000
M $25,000 $8,958,000
N $25,000 $13,456,000
O $25,000 $4,479,000
P $25,000 $13,436,000
Q $25,000 $4,479,000
S $25,000 $40,309,872
Each Certificate will share ratably in all rights of the related
Class. The Class T, Class R and Class LR Certificates will each be issuable in
one or more registered, definitive physical certificates in minimum
denominations of 5% Percentage Interests and integral multiples of a 1%
Percentage Interest in excess thereof and together aggregating the entire 100%
Percentage Interest in each such Class.
The Global Certificates shall be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and Beneficial
Owners shall hold interests in the Global Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations and Classes as set forth above.
The Global Certificates shall in all respects be entitled to the
same benefits under this Agreement as Individual Certificates authenticated and
delivered hereunder.
(b) Except insofar as pertains to any Individual Certificate, the
Trust Fund, the Paying Agent and the Trustee may for all purposes (including the
making of payments due on the Global Certificates and the giving of notice to
Holders thereof) deal with the Depository as the authorized representative of
the Beneficial Owners with respect to the Global Certificates for the purposes
of exercising the rights of Certificateholders hereunder; provided, however,
that, for purposes of providing information pursuant to Section 3.22 or
transmitting communications pursuant to Section 5.05(a), to the extent that the
Depositor has provided the Trustee with the names of Beneficial Owners (even if
such Certificateholders hold their Certificates through the Depository) the
Trustee shall provide such information to such Beneficial Owners directly. The
rights of Beneficial Owners with respect to Global Certificates shall be limited
to those established by law and agreements between such Certificateholders and
the Depository and Depository Participants. Except as set forth in Section
5.01(e) below, Beneficial Owners of Global Certificates shall not be entitled to
physical certificates for the Global Certificates as to which they are the
Beneficial Owners. Requests and directions from, and votes of, the Depository as
Holder of the Global Certificates shall not be deemed inconsistent if they are
made with respect to different Beneficial Owners. Subject to the restrictions on
transfer set forth in this Section 5.02 and Applicable Procedures, the holder of
a beneficial interest in a Private Global Certificate may request that the
Trustee cause the Depository (or any Agent Member) to notify the Certificate
Registrar and the Certificate Custodian in writing of a request for transfer or
exchange of such beneficial interest for an Individual Certificate or
Certificates. Upon receipt of such a request and payment by the related
Beneficial Owner of any attendant expenses, the Depositor shall cause the
issuance and delivery of such Individual Certificates. The Certificate Registrar
may establish a reasonable record date in connection with solicitations of
consents from or voting by Certificateholders and give notice to the Depository
of such record date. Without the written consent of the Certificate Registrar,
no Global Certificate may be transferred by the Depository except to a successor
Depository that agrees to hold the Global Certificates for the account of the
Beneficial Owners.
(c) 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.
(d) The Global Certificates (i) shall be delivered by the
Certificate Registrar to the Depository or, pursuant to the Depository's
instructions on behalf of the Depository to, and deposited with, the Certificate
Custodian, and in either case 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 Global 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 (i) the Depository advises the Trustee in writing that the
Depository is no longer willing, qualified or able properly to discharge its
responsibilities as Depository, and the Depositor is unable to locate a
qualified successor, (ii) the Depositor, at its sole option, elects to terminate
the book-entry system through the Depository with respect to all or any portion
of any Class of Certificates or (iii) after the occurrence of an Event of
Default, Beneficial Owners owning not less than a majority in Certificate
Balance or Notional Balance, as applicable, of the Global Certificate for any
Class then outstanding advise the Trustee and the Depository through Depository
Participants in writing that the continuation of a book-entry system through the
Depository is no longer in the best interests of the Beneficial Owner or Owners
of such Global Certificate, the Trustee shall notify the affected Beneficial
Owner or Owners through the Depository of the occurrence of such event and the
availability of Individual Certificates to such Beneficial Owners requesting
them. Upon surrender to the Trustee of Global Certificates by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall issue the Individual Certificates. Neither the
Trustee, the Certificate Registrar, the Master Servicer, the Special Servicer
nor the Depositor shall be liable for any actions taken by the Depository or its
nominee, including, without limitation, any delay in delivery of such
instructions. Upon the issuance of Individual Certificates, the Trustee, the
Certificate Registrar and the Master Servicer shall recognize the Holders of
Individual Certificates as Certificateholders hereunder.
(f) If the Trustee, its agents or the Master Servicer or Special
Servicer have instituted or have been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under the
Certificates, and the Trustee, the Master Servicer or the Special Servicer have
been advised by counsel that in connection with such proceeding it is necessary
or appropriate for the Trustee, the Master Servicer or the Special Servicer to
obtain possession of the Certificates, the Trustee, the Master Servicer or the
Special Servicer may in their sole discretion determine that the Certificates
represented by the Global Certificates shall no longer be represented by such
Global Certificates. In such event, the Trustee or the Authenticating Agent will
execute and authenticate and the Certificate Registrar will deliver, in exchange
for such Global Certificates, Individual Certificates (and if the Trustee or the
Certificate Custodian has in its possession Individual Certificates previously
executed, the Authenticating Agent will authenticate and the Certificate
Registrar will deliver such Certificates) in a Denomination equal to the
aggregate Denomination of such Global Certificates.
(g) If the Trust Fund ceases to be subject to Section 13 or 15(d) of
the Exchange Act, the Trustee shall make available to each Holder of a Class XS,
Class G, Class H, Class J, Class K, Class L, Class M, Class N and Class O, Class
P, Class Q, Class S, Class T, Class R or Class LR Certificate, upon request of
such a Holder, information, to the extent such information is in its possession,
substantially equivalent in scope to the information currently filed by the
Master Servicer with the Commission pursuant to the Exchange Act, plus such
additional information required to be provided for securities qualifying for
resales under Rule 144A under the Act, all of which information referred to in
this paragraph shall be provided on a timely basis to the Trustee by the Master
Servicer.
For so long as the Class R or Class LR Certificates remain
outstanding, none of the Depositor, the Trustee or the Certificate Registrar
shall take any action which would cause the Trust Fund to fail to be subject to
Section 15(d) of the Exchange Act.
(h) Each Certificate may be printed or in typewritten or similar
form, and each Certificate shall, upon original issue, be executed and
authenticated by the Trustee or the Authenticating Agent and delivered to the
Depositor. All Certificates shall be executed by manual or facsimile signature
on behalf of the Trustee or Authenticating Agent by an authorized officer or
signatory. Certificates bearing the signature of an individual who was at any
time the proper officer or signatory of the Trustee or Authenticating Agent
shall bind the Trustee or Authenticating Agent, notwithstanding that such
individual has ceased to hold such office or position prior to the delivery of
such Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-28 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.
(i) If, in connection with any Distribution Date, the Trustee shall
have reported the amount of an anticipated distribution to the Depository based
on the expected receipt of any monthly payment based on information set forth in
any report of the Master Servicer or the Special Servicer, or any other monthly
payment, Balloon Payment or prepayment expected to be paid on the last two
Business Days preceding such Distribution Date, and the related Borrower fails
to make such payments at such time, the Trustee shall use commercially
reasonable efforts to cause the Depository to make the revised distribution on a
timely basis on such Distribution Date. Any out-of-pocket costs incurred by the
Trustee as a consequence of a Borrower failing to make such payments shall be
reimbursable to the Trustee as an expense of the Trust Fund.
Section 5.02 Registration, Transfer and Exchange of Certificates.
(a) The Trustee shall keep or cause to be kept at its offices books (the
"Certificate Register") for the registration, transfer and exchange of
Certificates (the Trustee, in such capacity, being the "Certificate Registrar").
The Depositor, the Master Servicer 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 the individual Participants
holding beneficial interests in the Trust Fund through the Depository. 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 Depositor, Certificate Registrar, the Master Servicer, Special Servicer,
the Trustee, the Trustee, any Paying Agent and any agent of any of them shall
not be affected by any notice or knowledge to the contrary. An Individual
Certificate is transferable or exchangeable only upon the surrender of such
Certificate to the Certificate Registrar at its offices together with an
assignment and transfer (executed by the Holder or his duly authorized
attorney), subject to the requirements of Sections 5.01(h) and 5.02(c), (d),
(e), (f), (g), (h) and (i). Upon request of the Trustee, the Certificate
Registrar shall provide the Trustee with the names, addresses and Percentage
Interests of the Holders.
(b) Upon surrender for registration of transfer of any Individual
Certificate, subject to the requirements of Sections 5.02(c), (d), (e), (f),
(g), (h) and (i), the Trustee 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 Individual 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
subsequently destroyed by the Certificate Registrar. Each new Certificate issued
pursuant to this Section 5.02 shall be registered in the name of any Person as
the transferring Holder may request, subject to the provisions of Sections
5.01(h) and 5.02(c), (d), (e), (f), (g), (h) and (i).
(c) In addition to the provisions of Sections 5.01(h) and 5.02(d),
(e), (f), (g), (h) and (i) and the rules of the Depository, the exchange,
transfer and registration of transfer of Individual Certificates or beneficial
interests in the Private Global Certificates shall be subject to the following
restrictions:
(i) Transfers between Holders of Individual Certificates. With
respect to the transfer and registration of transfer of an Individual
Certificate representing an interest in the Class T, Class R or Class LR
Certificates to a transferee that takes delivery in the form of an
Individual Certificate:
(A) The Certificate Registrar shall register the transfer of
an Individual Certificate if the requested transfer is being made by
a transferee who has provided the Certificate Registrar with an
Investment Representation Letter substantially in the form of
Exhibit D-1 hereto (an "Investment Representation Letter"), to the
effect that the transfer is being made to a Qualified Institutional
Buyer in accordance with Rule 144A;
(B) The Certificate Registrar shall register the transfer of
an Individual Certificate pursuant to Regulation S after the
expiration of the Restricted Period if (1) the transferor has
provided the Certificate Registrar with a Regulation S Transfer
Certificate substantially in the form of Exhibit G hereto (a
"Regulation S Transfer Certificate"), and (2) the transferee
furnishes to the Certificate Registrar an Investment Representation
Letter; or
(C) The Certificate Registrar shall register the transfer of
an Individual Certificate if prior to the transfer such transferee
furnishes to the Certificate Registrar (1) an Investment
Representation Letter to the effect that the transfer is being made
to an Institutional Accredited Investor or to an Affiliated Person
in accordance with an applicable exemption under the Act, and (2) an
opinion of counsel acceptable to the Certificate Registrar that such
transfer is in compliance with the Act;
and, in each case, the Certificate Registrar shall register the transfer
of an Individual Certificate only if prior to the transfer the transferee
furnishes to the Certificate Registrar a written undertaking by the
transferor to reimburse the Trust Fund for any costs incurred by it in
connection with the proposed transfer. In addition, the Certificate
Registrar may, as a condition of the registration of any such transfer,
require the transferor to furnish such other certificates, legal opinions
or other information (at the transferor's expense) as the Certificate
Registrar may reasonably require to confirm that the proposed transfer is
being made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Act and other applicable laws.
(ii) Transfers within the Private Global Certificates.
Notwithstanding any provision to the contrary herein, so long as a Private
Global Certificate remains outstanding and is held by or on behalf of the
Depository, transfers within the Private Global Certificates shall only be
made in accordance with this Section 5.02(c)(ii).
(A) Rule 144A Global Certificate to Regulation S Global
Certificate During the Restricted Period. If, during the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A Global
Certificate wishes at any time to transfer its beneficial interest
in such Rule 144A Global Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the related
Regulation S Global Certificate, such Beneficial 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 such Regulation S Global
Certificate only upon compliance with the provisions of this Section
5.02(c)(ii)(A). Upon receipt by the Certificate Registrar at the
Corporate Trust Office of (1) written instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Certificate Registrar to credit or cause to be
credited to another specified Agent Member's account a beneficial
interest in the Regulation S Global Certificate in an amount equal
to the Denomination of the beneficial interest in the Rule 144A
Global Certificate to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information
regarding the account of the Agent Member and the Euroclear or
Clearstream account, as the case may be, to be credited with, and
the account of the Agent Member to be debited for, such beneficial
interest, and (3) a certificate in the form of Exhibit H hereto
given by the Beneficial Owner of such interest, the Certificate
Registrar shall instruct the Depository or the Certificate
Custodian, as applicable, to reduce the Denomination of the Rule
144A Global Certificate by the Denomination of the beneficial
interest in the Rule 144A Global Certificate to be so transferred
and, concurrently with such reduction, to increase the Denomination
of the Regulation S Global Certificate by the Denomination of the
beneficial interest in the Rule 144A Global Certificate to be so
transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions (who shall be an Agent
Member acting for or on behalf of Euroclear or Clearstream, or both,
as the ease may be) a beneficial interest in the Regulation S Global
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Global Certificate was reduced upon
such transfer.
(B) Rule 144A Global Certificate to Regulation S Global
Certificate After the Restricted Period. If, after the Restricted
Period, a Beneficial Owner of an interest in a Rule 144A Global
Certificate wishes at any time to transfer its beneficial interest
in such Rule 144A Global Certificate to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the related
Regulation S Global 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 such Regulation S Global Certificate only upon
compliance with the provisions of this Section 5.02(c)(ii)(B). Upon
receipt by the Certificate Registrar at the Corporate Trust Office
of (1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar
to credit or cause to be credited to another specified Agent
Member's account a beneficial interest in the Regulation S Global
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Global Certificate to be transferred, (2)
a written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member
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 Agent Member to be
debited for, such beneficial interest, and (3) a certificate in the
form of Exhibit I hereto given by the Beneficial Owner of such
interest, the Certificate Registrar shall instruct the Depository or
the Certificate Custodian, as applicable, to reduce the Denomination
of the Rule 144A Global Certificate by the aggregate Denomination of
the beneficial interest in the Rule 144A Global Certificate to be so
transferred and, concurrently with such reduction, to increase the
Denomination of the Regulation S Global Certificate by the aggregate
Denomination of the beneficial interest in the Rule 144A Global
Certificate to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions
a beneficial interest in the Regulation S Global Certificate having
a Denomination equal to the amount by which the Denomination of the
Rule 144A Global Certificate was reduced upon such transfer.
(C) Regulation S Global Certificate to Rule 144A Global
Certificate. If the Beneficial Owner of an interest in a Regulation
S Global Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Global Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest
in the related Rule 144A Global Certificate, such Beneficial Owner
may, in addition to complying with all Applicable Procedures,
transfer or cause the transfer of such beneficial interest for an
equivalent beneficial interest in such Rule 144A Global Certificate
only upon compliance with the provisions of this Section
5.02(c)(ii)(C). Upon receipt by the Certificate Registrar at the
Corporate Trust Office of (1) written instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Certificate Registrar to credit or cause to be
credited to another specified Agent Member's account a beneficial
interest in the Rule 144A Global Certificate in an amount equal to
the Denomination of the beneficial interest in the Regulation S
Global Certificate to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information
regarding the account of the Agent Member to be credited with, and
the account of the Agent Member 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 a
Regulation S Global Certificate for a beneficial interest in the
related Rule 144A Global Certificate (i) during the Restricted
Period, a certificate in the form of Exhibit J hereto given by the
holder of such beneficial interest or (ii) after the Restricted
Period, an Investment Representation Letter from the transferee to
the effect that such transferee is a Qualified Institutional Buyer,
the Certificate Registrar shall instruct the Depository or the
Certificate Custodian, as applicable, to reduce the Denomination of
the Regulation S Global Certificate by the aggregate Denomination of
the beneficial interest in the Regulation S Global Certificate to be
transferred, and, concurrently with such reduction, to increase the
Denomination of the Rule 144A Global Certificate by the aggregate
Denomination of the beneficial interest in the Regulation S Global
Certificate to be so transferred, and to credit or cause to be
credited to the account of the Person specified in such instructions
a beneficial interest in such Rule 144A Global Certificate having a
Denomination equal to the amount by which the Denomination of the
Regulation S Global Certificate was reduced upon such transfer.
(iii) Transfers from the Private Global Certificates to Individual
Certificates. Any and all transfers from a Private Global Certificate to a
transferee wishing to take delivery in the form of an Individual
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Individual Certificate described in a
legend set forth on the face of such Certificate substantially in the form
of Exhibit F as attached hereto (the "Securities Legend"), and such
transferee agrees that it will transfer such Individual 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(c)(iii).
(A) Transfers of a beneficial interest in a Private Global
Certificate to an Institutional Accredited Investor will require
delivery in the form of an Individual Certificate and the
Certificate Registrar shall register such transfer only upon
compliance with the provisions of Section 5.02(c)(i)(c).
(B) Transfers of a beneficial interest in a Private Global
Certificate to a Qualified Institutional Buyer or a Regulation S
Investor wishing to take delivery in the form of an Individual
Certificate will be registered by the Certificate Registrar only
upon compliance with the provisions of Sections 5.02(c)(i)(A) and
(B), respectively.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Global Certificate to an Individual
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
Private Global Certificate for an Individual Certificate, as provided
herein, the Certificate Registrar shall endorse on the schedule affixed to
the related Private Global Certificate (or on a continuation of such
schedule affixed to such Private Global 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 Private Global
Certificate equal to the Denomination of such Individual Certificate
issued in exchange therefor or upon transfer thereof. Unless determined
otherwise by the Certificate Registrar and the Depositor in accordance
with applicable law, an Individual Certificate issued upon transfer of or
exchange for a beneficial interest in the Private Global Certificate shall
bear the Securities Legend.
(iv) Transfers of Individual Certificates to the Private Global
Certificates. If a Holder of an Individual 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
Global Certificate or the related Rule 144A Global Certificate, such
transfer may be effected only in accordance with the Applicable Procedures
and this Section 5.02(c)(iv). Upon receipt by the Certificate Registrar at
the Corporate Trust Office of (l) the Individual Certificate to be
transferred with an assignment and transfer pursuant to Section 5.02(a),
(2) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Certificate Registrar to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in such Regulation S Global Certificate or such Rule
144A Global Certificate, as the case may be, in an amount equal to the
Denomination of the Individual Certificate to be so transferred, (3) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member 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) an Investment Representation Letter from
the transferee and, if delivery is to be taken in the form of a beneficial
interest in the Regulation S Global 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 Global Certificate, the Certificate Registrar
shall cancel such Individual Certificate, execute and deliver a new
Individual Certificate for the Denomination of the Individual 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
shall instruct the Depository or the Certificate Custodian, as applicable,
to increase the Denomination of the Regulation S Global Certificate or the
Rule 144A Global Certificate, as the case may be, by the Denomination of
the Individual Certificate to be so transferred, and to 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 Global Certificate
during the Restricted Period, shall be an Agent Member acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be, a
corresponding Denomination of the Rule 144A Global Certificate or the
Regulation S Global 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 Private
Global Certificate.
(v) All Transfers. An exchange of a beneficial interest in a Private
Global Certificate for an Individual Certificate or Certificates, an
exchange of an Individual Certificate or Certificates for a beneficial
interest in a Private Global Certificate and an exchange of an Individual
Certificate or Certificates for another Individual Certificate or
Certificates (in each case, whether or not such exchange is made in
anticipation of subsequent transfer, and, in the case of the Private
Global Certificates, so long as the Private Global 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.
(d) If Certificates are issued upon the transfer, exchange or
replacement of Certificates not bearing the Securities Legend, the Certificates
so issued shall not bear the Securities Legend. If Certificates are issued upon
the transfer, exchange or replacement of Certificates bearing the Securities
Legend, or if a request is made to remove the Securities Legend on a
Certificate, the Certificates so issued shall bear the Securities Legend, or the
Securities Legend shall not be removed, as the case may be, unless there is
delivered to the Certificate Registrar such satisfactory evidence, which may
include an opinion of counsel (at the expense of the party requesting the
removal of such legend) familiar with United States securities laws, as may be
reasonably required by the Certificate Registrar, that neither the Securities
Legend nor the restrictions on transfers set forth therein are required to
ensure that transfers of any Certificate comply with the provisions of Rule 144A
or Rule 144 under the Act or that such Certificate is not a "restricted
security" within the meaning of Rule 144 under the Act. Upon provision of such
satisfactory evidence, the Certificate Registrar shall execute and deliver a
Certificate that does not bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set forth
in Section 5.01(i) and in this Section 5.02, the Holder of any Individual
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 office of the Trustee or at the office of any transfer agent
appointed as provided under this Agreement, 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. Following a proper request for transfer or exchange, the Certificate
Registrar shall, within five Business Days of such request if made at such
office of the Trustee or within ten Business Days if made at the office of a
transfer agent (other than the Certificate Registrar), execute and deliver at
the office of the Trustee 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, an Individual 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 Individual Certificate shall not be valid unless
made at the office of the Trustee 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.
(f) An Individual Certificate (other than an Individual Certificate
issued in exchange for a beneficial interest in a Global Certificate pursuant to
Section 5.01) or a beneficial interest in a Private Global Certificate may only
be transferred to Eligible Investors, as described herein. In the event that a
Responsible Officer of the Certificate Registrar becomes aware that such an
Individual Certificate or beneficial interest in a Private Global 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
Individual Certificate or beneficial interest in a Private Global Certificate to
an Eligible Investor within fourteen days after notice of such determination and
each Certificateholder by its acceptance of a Certificate authorizes the
Certificate Registrar to take such action.
(g) Subject to the provisions of this Section 5.02 regarding
transfer and exchange, transfers of the Global Certificates shall be limited to
transfers of such Global Certificates in whole, but not in part, to nominees of
the Depository or to a successor of the Depository or such successor's nominee.
(h) 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 other than for transfers to
Institutional Accredited Investors, as provided herein. 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. 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.
(i) Subject to Section 5.02(e), transfers of the Class T, Class R
and Class LR Certificates may be made only in accordance with this Section
5.02(i). The Certificate Registrar shall register the transfer of a Class T,
Class R or Class LR Certificate only if (x) the transferor has advised the
Certificate Registrar in writing that such Certificate is being transferred to a
Qualified Institutional Buyer, an Affiliated Person or an Institutional
Accredited Investor and (y) prior to such transfer the transferee furnishes to
the Certificate Registrar an Investment Representation Letter. In addition, the
Certificate Registrar may as a condition of the registration of any such
transfer require the transferor to furnish such other certifications, legal
opinions or other information (at the transferor's expense) as it may reasonably
require to confirm that the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Act and other applicable laws.
(j) Neither the Depositor, the Master Servicer, the Trustee nor the
Certificate Registrar are obligated to register or qualify the Class XS, Class
G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class
Q, Class S, Class R or Class LR Certificates under the Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer of such Certificates without registration or
qualification. Any Certificateholder desiring to affect such a transfer shall,
and does hereby agree to, indemnify the Depositor, the Master Servicer, the
Trustee and the Certificate Registrar, against any loss, liability or expense
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws.
(k) No transfer of any Class L, Class M, Class N and Class O, Class
P, Class Q, Class S, Class T, Class R or Class LR Certificate (each, a
"Restricted Certificate") shall be made to (i) an employee benefit plan subject
to the fiduciary responsibility provisions of ERISA, or Section 4975 of the
Code, or a governmental plan, as defined in Section 3(32) of ERISA, 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 collective investment fund in which a Plan is invested, an insurance
company that is using the assets of any insurance company separate account or
general account in which the assets of any such Plan are invested (or which are
deemed pursuant to ERISA or any Similar Law to include assets of Plans) to
acquire any such Restricted Certificate or any other Person acting on behalf of
any Plan or using the assets of any Plan to acquire any such Restricted
Certificate, other than (with respect to transfer of Restricted Certificates
other than the Class T Certificates and the Residual Certificates) an insurance
company using the assets of its general account under circumstances whereby such
transfer to such insurance company would be exempt from the "prohibited
transaction" provisions of Sections 406 and 407 of ERISA and Section 4975 of the
Code under Sections I and III of PTCE 95-60, or a substantially similar
exemption under Similar Law. Each prospective transferee of a Restricted
Certificate shall either (i) deliver to the Depositor, the Certificate Registrar
and the Trustee, a transfer or representation letter, substantially in the form
of Exhibit D-2 hereto, stating that the prospective transferee is not a Person
referred to in (i) or (ii) above or (ii) in the event the transferee is such an
entity specified in (i) or (ii) above (except in the case of a Class T
Certificate or a Residual Certificate, which may not be transferred unless the
transferee represents it is not such an entity), such entity shall provide any
opinions of counsel, officers' certificates or agreements as may be required by,
and in form and substance satisfactory to, the Depositor, the Trustee and the
Certificate Registrar, to the effect that the purchase and holding of the
Certificates by or on behalf of a Plan will not constitute or result in a
non-exempt prohibited transaction within the meaning of Sections 406 and 407 of
ERISA and Section 4975 of the Code, and will not subject the Master Servicer,
the Special Servicer, the Depositor, the Trustee or the Certificate Registrar to
any obligation or liability. None of the Trustee or the Certificate Registrar
shall register a Class T, Class R or Class LR Certificate in any Person's name
unless such Person has provided the letter referred to in clause (i) of the
preceding sentence. The transferee of a beneficial interest in a Global
Certificate that is a Restricted Certificate shall be deemed to represent that
it is not a Plan or a Person acting on behalf of any Plan or using the assets of
any Plan to acquire such interest other than (with respect to transfers of
beneficial interests in Global Certificates which are Restricted Certificates
other than the Class T Certificates and the Residual Certificates) an insurance
company using the assets of its general account under circumstances whereby such
transfer to such insurance company would be exempt from the "prohibited
transaction" provisions of Sections 406 and 407 of ERISA and Section 4975 of the
Code under Sections I and III of PTCE 95-60, or a substantially similar
exemption under Similar Law. Any transfer of a Restricted Certificate that would
violate or result in a non-exempt prohibited transaction under ERISA or Section
4975 of the Code or Similar Law shall be deemed absolutely null and void ab
initio.
(l) Each Person who has or acquires any Ownership Interest shall be
deemed by the acceptance or acquisition of such Ownership Interest to have
agreed to be bound by the following provisions and the rights of each Person
acquiring any Ownership Interest are expressly subject to the following
provisions:
(i) Each Person acquiring or holding any Ownership Interest shall be
a Permitted Transferee and shall not acquire or hold such Ownership
Interest as agent (including a broker, nominee or other middleman) on
behalf of any Person that is not a Permitted Transferee. Any such Person
shall promptly notify the Certificate Registrar of any change or impending
change in its status (or the status of the beneficial owner of such
Ownership Interest) as a Permitted Transferee. Any acquisition described
in the first sentence of this Section 5.02(l) by a Person who is not a
Permitted Transferee or by a Person who is acting as an agent of a Person
who is not a Permitted Transferee shall be void and of no effect, and the
immediately preceding owner who was a Permitted Transferee shall be
restored to registered and beneficial ownership of the Ownership Interest
as fully as possible.
(ii) No Ownership Interest may be Transferred, and no such Transfer
shall be registered in the Certificate Register, without the express
written consent of the Certificate Registrar, and the Certificate
Registrar shall not recognize the Transfer, and such proposed Transfer
shall not be effective, without such consent with respect thereto. In
connection with any proposed Transfer of any Ownership Interest, the
Certificate Registrar shall, as a condition to such consent, (x) require
delivery to it in form and substance satisfactory to it, and the proposed
transferee shall deliver to the Certificate Registrar and to the proposed
transferor an affidavit in substantially the form attached as Exhibit C-1
(a "Transferee Affidavit") of the proposed transferee (A) that such
proposed transferee is a Permitted Transferee and (B) stating that (i) the
proposed transferee historically has paid its debts as they have come due
and intends to do so in the future, (ii) the proposed transferee
understands that, as the holder of an Ownership Interest, it may incur
liabilities in excess of cash flows generated by the residual interest,
(iii) the proposed transferee intends to pay taxes associated with holding
the Ownership Interest as they become due, (iv) the proposed transferee
will not transfer the Ownership Interest to any Person that does not
provide a Transferee Affidavit or as to which the proposed transferee has
actual knowledge that such Person is not a Permitted Transferee or is
acting as an agent (including a broker, nominee or other middleman) for a
Person that is not a Permitted Transferee, (v) the proposed transferee
will not cause income from the Class R or Class LR Certificate to be
attributable to a foreign permanent establishment or fixed base, within
the meaning of an applicable income tax treaty, of the proposed transferee
or any other U.S. Person and (vi) the proposed transferee expressly agrees
to be bound by and to abide by the provisions of this Section 5.02(l) and
(y) other than in connection with the initial issuance of the Class R and
Class LR Certificates, require a statement from the proposed transferor
substantially in the form attached as Exhibit C-2 (the "Transferor
Letter"), that the proposed transferor has no actual knowledge that the
proposed transferee is not a Permitted Transferee and has no actual
knowledge or reason to know that the proposed transferee's statements in
the preceding clauses (x)(B)(i) or (iii) are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a
proposed transferee under clause (ii) above, if a Responsible Officer of
the Certificate Registrar has actual knowledge that the proposed
transferee is not a Permitted Transferee, no Transfer to such proposed
transferee shall be effected and such proposed Transfer shall not be
registered on the Certificate Register; provided, however, that the
Certificate Registrar shall not be required to conduct any independent
investigation to determine whether a proposed transferee is a Permitted
Transferee.
Neither the Trustee nor the Certificate Registrar shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restriction or transfer imposed under Article V of this Agreement or under
applicable law with respect to any transfer of any Certificate, or any interest
therein, other than to require delivery of the certification(s) and/or opinions
of counsel described in Article V applicable with respect to changes in
registration of record ownership of Certificates in the Certificate Register.
The Trustee and the Certificate Registrar shall have no liability for transfers,
including transfers made through the book-entry facilities of the Depository or
between or among Depository Participants or Beneficial Owners made in violation
of applicable restrictions.
Upon notice to the Certificate Registrar that there has occurred a
Transfer to any Person that is a Disqualified Organization or an agent thereof
(including a broker, nominee, or middleman) in contravention of the foregoing
restrictions, and in any event not later than 60 days after a request for
information from the transferor of such Ownership Interest, or such agent, the
Certificate Registrar and the Trustee agree to furnish to the IRS and the
transferor of such Ownership Interest or such agent such information necessary
to the application of Section 860E(e) of the Code as may be required by the
Code, including, but not limited to, the present value of the total anticipated
excess inclusions with respect to such Class R or Class LR Certificate (or
portion thereof) for periods after such Transfer. At the election of the
Certificate Registrar and the Trustee, the Certificate Registrar and the Trustee
may charge a reasonable fee for computing and furnishing such information to the
transferor or to such agent referred to above; provided, however, that such
Persons shall in no event be excused from furnishing such information.
Section 5.03 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 Certificate Registrar such security or indemnity as may be required by it to
save it, the Trustee and the Master Servicer harmless, then, in the absence of
actual knowledge by a Responsible Officer of the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee or the
Authenticating Agent shall execute and authenticate and the Certificate
Registrar shall 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 tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section 5.03, 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 Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership of the corresponding interest in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.04 Appointment of Paying Agent. The Trustee may appoint a
paying agent for the purpose of making distributions to Certificateholders
pursuant to Section 4.01. The Trustee shall cause such Paying Agent, if other
than the Trustee or the Master Servicer, to execute and deliver to the Master
Servicer and the Trustee an instrument in which such Paying Agent shall agree
with the Master Servicer and the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in trust for the benefit
of the Certificateholders entitled thereto until such sums have been paid to the
Certificateholders or disposed of as otherwise provided herein. The initial
Paying Agent shall be the Trustee. Except for the Trustee, as the initial Paying
Agent, the Paying Agent shall at all times be an entity having a long-term
unsecured debt rating of at least "A+" by S&P and "A1" by Xxxxx'x, or shall be
otherwise acceptable to each Rating Agency.
Section 5.05 Access to Certificateholders' Names and Addresses. (a)
If any Certificateholder (for purposes of this Section 5.05, an "Applicant")
applies in writing to the Certificate Registrar, and such application states
that the Applicant desires to communicate with other Certificateholders, the
Certificate Registrar shall furnish or cause to be furnished to such Applicant a
list of the names and addresses of the Certificateholders as of the most recent
Record Date, at the expense of the Applicant.
(b) Every Certificateholder, by receiving and holding its
Certificate, agrees with the Trustee that the Trustee and the Certificate
Registrar shall not be held accountable in any way by reason of the disclosure
of any information as to the names and addresses of the Certificateholders
hereunder, regardless of the source from which such information was derived.
Section 5.06 Actions of Certificateholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by Certificateholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Certificateholders in person or by agent duly appointed in writing; and
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
when required, to the Master Servicer. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any purpose of
this Agreement and conclusive in favor of the Trustee and the Master Servicer,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder of
any such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder shall bind every Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, or omitted to be done,
by the Trustee or the Master Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
(d) The Trustee or Certificate Registrar may require such additional
proof of any matter referred to in this Section 5.06 as it shall deem necessary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the Master Servicer and the
Special Servicer. The Depositor, the Master Servicer and the Special Servicer
each shall be liable in accordance herewith only to the extent of the
obligations specifically imposed by this Agreement.
Section 6.02 Merger or Consolidation of either Master Servicer.
Subject to the following paragraph, the applicable Master Servicer will keep in
full effect its existence, rights and good standing (i) as a corporation under
the laws of the State of California (with respect to the Capmark Finance Inc.)
or (ii) as a national banking association under the laws of the United States
(with respect to Wachovia Bank, National Association) and will not jeopardize
its ability to do business in each jurisdiction in which the Mortgaged
Properties securing the Mortgage Loans that it is servicing are located or to
protect the validity and enforceability of this Agreement, the Certificates or
any of the Mortgage Loans that it is servicing and to perform its respective
duties under this Agreement.
The Master Servicer, the Special Servicer or the Depositor may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets to any Person, in which case any Person resulting from any
merger or consolidation to which it shall be a party, or any Person succeeding
to its business, shall be the successor of the Master Servicer, the Special
Servicer or the Depositor hereunder, and shall be deemed to have assumed all of
the liabilities of the Master Servicer, the Special Servicer or the Depositor
hereunder, if each of the Rating Agencies has confirmed in writing that such
merger or consolidation or transfer of assets and succession, in and of itself,
will not cause a downgrade, qualification or withdrawal of the then-current
ratings assigned by such Rating Agency to any Class of Certificates.
Notwithstanding the foregoing, prior to the date upon which the Trust's Exchange
Act reporting obligation is suspended by the filing of the Form 15 as
contemplated by Section 10.10, no Master Servicer or Special Servicer may remain
the Master Servicer or Special Servicer under this Agreement after (x) being
merged or consolidated with or into any Person that is a Prohibited Party, or
(y) transferring all or substantially all of its assets to any Person if such
Person is a Prohibited Party, except to the extent (i) the Master Servicer or
Special Servicer is the surviving entity of such merger, consolidation or
transfer and has been and continues to be in compliance with its Regulation AB
reporting obligations hereunder or (ii) the Depositor consents to such merger,
consolidation or transfer, which consent shall not be unreasonably withheld.
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicer and Others. (a) Neither the Depositor, the Master Servicer nor the
Special Servicer nor any of the directors, officers, employees, members,
managers or agents (including sub-servicers) of the Depositor, the Master
Servicer or the Special Servicer shall be under any liability to the Trust Fund,
the Certificateholders or any Serviced Companion Loan Noteholders for any action
taken, or for refraining from the taking of any action, in good faith pursuant
to this Agreement (including actions taken or not taken at the direction of the
Directing Certificateholder), or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer or the
Special Servicer, or any member, manager, director, officer, employee or agent
(including sub-servicers) of the Depositor, the Master Servicer or the Special
Servicer, against any breach of warranties or representations made herein, or
against any liability which would otherwise be imposed by reason of willful
misconduct, bad faith, fraud or negligence (or in the case of the Master
Servicer or Special Servicer, by reason of any specific liability imposed
hereunder for a breach of the Servicing Standard) in the performance of duties
or by reason of negligent disregard of obligations or duties hereunder. The
Depositor, the Master Servicer, the Special Servicer, and any member, manager,
director, officer, employee or agent (including sub-servicers) of the Depositor,
the Master Servicer or the Special Servicer may rely in good faith on any
document of any kind which, prima facie, is properly executed and submitted by
any appropriate Person respecting any matters arising hereunder. The Depositor,
the Master Servicer, the Special Servicer and any member, manager, director,
officer, employee or agent (including sub-servicers) of the Depositor, the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund out of the Collection Account in accordance with Section
3.06(b) (or, if and to the extent that such matter relates directly to any
Serviced Whole Loan, first out of the applicable Serviced Whole Loan Collection
Account; provided that such expenses will first be allocated to the related
Serviced B Loan, if any, and then will be allocated to the related Mortgage Loan
(or in the case of a Serviced Whole Loan with a Pari Passu Companion Loan, to
the holders related Mortgage Loan and Pari Passu Companion Loan on a pro rata
basis in accordance with their outstanding principal balances), and then, if
funds therein are insufficient, out of the Collection Accounts in accordance
with Section 3.06, provided, that with respect to the Spectrum Centre Whole
Loan, (i) such allocation first to the related B Loan shall only apply during
the occurrence and continuance of a material default under the Mortgage Loan
Documents related to the Spectrum Centre Whole Loan as defined in Section 3(b)
of the Spectrum Centre Intercreditor Agreement and (ii) the Depositor and its
members, managers, directors, officers, employees and agents will not be
entitled to such reimbursement out of funds allocated to the Spectrum Centre B
Loan) against any loss, liability or expense (including legal fees and expenses)
incurred in connection with any claim or legal action relating to this Agreement
or the Certificates, other than any loss, liability or expense (i) incurred by
reason of willful misconduct, bad faith, fraud or negligence in the performance
of duties hereunder or by reason of negligent disregard of obligations or duties
hereunder, in each case by the Person being indemnified or (ii) in the case of
the Depositor and any of its directors, officers, members, managers, employees
and agents, incurred in connection with any violation by any of them of any
state or federal securities laws. For the avoidance of doubt, such losses or
liabilities shall not be deemed to relate solely to a Serviced B Loan for the
sole reason that the related legal action was instituted by or against the
Serviced B Loan Noteholder.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its respective duties under this Agreement and
in its opinion does not expose it to any expense or liability; provided,
however, that the Depositor, the Master Servicer or the Special Servicer may in
its discretion undertake any action related to its obligations hereunder which
it may deem necessary or desirable with 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 and any
liability resulting therefrom shall be expenses, costs and liabilities of the
Trust Fund (or, if and to the extent such action action and/or liability
directly relates to) any Serviced Whole Loan, first out of amounts allocated to
the related B Loan, if any, out of the related Serviced Whole Loan Collection
Account, provided, that with respect to the Spectrum Centre B Loan, such
allocation first to the related B Loan shall only apply during the occurrence
and continuance of a material default under the Mortgage Loan Documents related
to the Spectrum Centre Whole Loan as defined in Section 3(b) of the Spectrum
Centre Intercreditor Agreement and the Depositor will not be entitled to such
reimbursement, and then such amounts will be allocated to the related Mortgage
Loan, and then if funds therein are insufficient, out of the Collection Accounts
in accordance with Section 3.06). For the avoidance of doubt, such losses or
liabilities shall not be deemed to relate solely to the Serviced B Loan for the
sole reason that the related legal action was instituted by or against the
Serviced B Loan Noteholder.
The terms of this Section 6.03 shall survive the termination of any
party hereto or of this Agreement.
(b) The Directing Certificateholder shall have no liability
whatsoever to the Trust Fund or any Certificateholder (except that if the
Directing Certificateholder is the Controlling Class Representative, the
Directing Certificateholder shall have no liability to any Controlling Class
Certificateholder 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, with respect to Controlling Class Certificateholders,
the Controlling Class Representative shall not be protected against any
liability 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 confirms its understanding that the Directing
Certificateholder may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates or one or
more Companion Loan Noteholders over Certificateholders or other Companion Loan
Noteholders, and that the Directing Certificateholder may have special
relationships and interests that conflict with those of Holders of some Classes
of the Certificates or other Companion Loan Noteholders, that the Directing
Certificateholder may act solely in its own interest (and if the Directing
Certificateholder is the Controlling Class Representative, the interests of the
Holders of the Controlling Class), that the Directing Certificateholder does not
have any duties to the Holders of any Class of Certificates or other Companion
Loan Noteholders (and if the Directing Certificateholder is the Controlling
Class Representative, other than the Controlling Class), that the Directing
Certificateholder that is not the Controlling Class Representative may take
actions that favor its own interest over the interests of the Certificateholders
or other Companion Loan Noteholders (and if the Directing Certificateholder is
the Controlling Class Representative, such Directing Certificateholder may favor
the interests of the Holders of the Controlling Class over the interests of the
Holders of one or more other classes of Certificates), that the Directing
Certificateholder that is not the Controlling Class Representative, absent
willful misfeasance, bad faith or negligence, shall not be deemed to have been
negligent or reckless, or to have acted in bad faith or engaged in willful
misfeasance, by reason of its having acted solely in its own interests (and if
the Directing Certificateholder is the Controlling Class Representative, 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 or Companion Loan Noteholder may take any action whatsoever
against the Directing Certificateholder or any director, officer, employee,
agent or principal thereof for having so acted.
Section 6.04 Limitation on Resignation of either Master Servicer and
the Special Servicer; Termination of either Master Servicer and the Special
Servicer. (a) The Master Servicer and the Special Servicer may assign their
respective rights and delegate their respective duties and obligations under
this Agreement in connection with the sale or transfer of a substantial portion
of their mortgage servicing or asset management portfolio, provided that: (i)
the purchaser or transferee accepting such assignment and delegation (A) shall
be an established mortgage finance institution, bank or mortgage servicing
institution, organized and doing business under the laws of any state of the
United States or the District of Columbia, authorized under such laws to perform
the duties of the Master Servicer or Special Servicer or a Person resulting from
a merger, consolidation or succession that is permitted under Section 6.02, (B)
shall be acceptable to each Rating Agency as confirmed by a letter from each
Rating Agency delivered to the Trustee that such assignment or delegation will
not cause a downgrade, withdrawal or qualification of the then-current ratings
of the Certificates and Companion Loan Securities, (C) shall execute and deliver
to the Trustee an agreement that contains an assumption by such Person of the
due and punctual performance and observance of each covenant and condition to be
performed or observed by the Master Servicer or Special Servicer, as applicable
under this Agreement from and after the date of such agreement and (D) shall not
be a Prohibited Party; (ii) as confirmed by a letter from each Rating Agency
delivered to the Trustee, each Rating Agency's rating or ratings of the
Certificates and Companion Loan Securities in effect immediately prior to such
assignment, sale or transfer will not be qualified, downgraded or withdrawn as a
result of such assignment, sale or transfer; (iii) the Master Servicer or the
Special Servicer shall not be released from its obligations under this Agreement
that arose prior to the effective date of such assignment and delegation under
this Section 6.04; and (iv) the rate at which the Servicer Compensation or
Special Servicer Compensation, as applicable (or any component thereof) is
calculated shall not exceed the rate then in effect. Upon acceptance of such
assignment and delegation, the purchaser or transferee shall be the successor
Master Servicer or Special Servicer, as applicable, hereunder.
(b) Except as provided in Section 6.02 and this Section 6.04, the
Master Servicer and the Special Servicer shall not resign from its respective
obligations and duties hereby imposed on it except upon determination that such
duties hereunder are no longer permissible under applicable law. Any such
determination permitting the resignation of a Master Servicer or the Special
Servicer, as applicable, shall be evidenced by an Opinion of Counsel (obtained
at the resigning Master Servicer's or Special Servicer's expense) to such effect
delivered to the Trustee.
(c) The Trustee shall be permitted to remove either Master Servicer
or the Special Servicer upon a Master Servicer Event of Default or a Special
Servicer Event of Default, as applicable. Without limiting the generality of the
succeeding paragraph, no such removal shall be effective unless and until (i)
the Master Servicer or the Special Servicer has been paid any unpaid Servicer
Compensation or Special Servicer Compensation, as applicable, unreimbursed
Advances (including Advance Interest Amounts thereon to which it is entitled)
and all other amounts to which the Master Servicer or the Special Servicer is
entitled hereunder to the extent such amounts accrue prior to such effective
date and (ii) with respect to a resignation by the Master Servicer, the
successor Master Servicer has deposited into the Investment Accounts from which
amounts were withdrawn to reimburse the terminated Master Servicer, an amount
equal to the amounts so withdrawn, to the extent such amounts would not have
been permitted to be withdrawn except pursuant to this paragraph, in which case
the successor Master Servicer shall, immediately upon deposit, have the same
right of reimbursement or payment as the terminated Master Servicer had
immediately prior to its termination without regard to the operation of this
paragraph.
No resignation or removal of either Master Servicer or the Special
Servicer as contemplated by the preceding paragraphs shall become effective
until the Trustee or a successor Master Servicer or Special Servicer shall have
assumed the resigning or terminated Master Servicer's or the Special Servicer's
responsibilities, duties, liabilities and obligations hereunder. If no successor
Master Servicer or Special Servicer can be obtained to perform such obligations
for the same compensation to which the terminated Master Servicer or Special
Servicer would have been entitled, additional amounts payable to such successor
Master Servicer or Special Servicer shall be treated as Realized Losses.
Section 6.05 Rights of the Depositor and the Trustee in Respect of
the Master Servicer and the Special Servicer. The Master Servicer and the
Special Servicer shall afford the Depositor, the Underwriters, the Trustee and
the Rating Agencies, upon reasonable notice, during normal business hours access
to all records maintained by it in respect of its rights and obligations
hereunder and access to its officers responsible for such obligations. Upon
request, the Master Servicer and/or the Special Servicer, as applicable, shall
furnish to the Depositor, the Master Servicer, Special Servicer and the Trustee
its most recent publicly available financial statements (or, with respect to the
Master Servicer, those of its ultimate parent) and such other non-proprietary
information as the Master Servicer or Special Servicer, as the case may be,
shall determine in its sole and absolute discretion as it possesses, which is
relevant to the performance of its duties hereunder and which it is not
prohibited by applicable law or contract from disclosing. The Depositor may, but
is not obligated to, enforce the obligations of the Master Servicer or the
Special Servicer hereunder which are in default and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of such
Person hereunder or exercise its rights hereunder, provided that the Master
Servicer and the Special Servicer shall not be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee. In the event the Depositor or its designee undertakes any such action,
it will be reimbursed by the Trust Fund from the Collection Accounts (or with
respect to a Serviced Whole Loan, to the extent such reimbursement is allocable
to such Serviced Whole Loan Collection Account, as applicable, provided, that
with respect to the Spectrum Centre Whole Loan, the Depositor will not be
entitled to such reimbursement), as provided in Section 3.06 and Section 6.03(a)
hereof to the extent not recoverable from the Master Servicer or Special
Servicer, as applicable. Neither the Depositor nor the Trustee and neither the
Master Servicer, with respect to the Special Servicer, or the Special Servicer,
with respect to the Master Servicer, shall have any responsibility or liability
for any action or failure to act by the Master Servicer or the Special Servicer
and neither such Person is obligated to monitor or supervise the performance of
the Master Servicer or the Special Servicer under this Agreement or otherwise.
Neither the Master Servicer nor the Special Servicer shall be under any
obligation to disclose confidential or proprietary information pursuant to this
Section.
Section 6.06 The Master Servicer or Special Servicer as Owners of a
Certificate. The Master Servicer or an Affiliate of the Master Servicer, or the
Special Servicer or an Affiliate of the Special Servicer, may become the Holder
(or with respect to a Global Certificate, Beneficial Owner) of any Certificate
with the same rights it would have if it were not a Master Servicer or the
Special Servicer or an Affiliate thereof. If, at any time during which either
Master Servicer or the Special Servicer or an Affiliate of either Master
Servicer or the Special Servicer is the Holder or Beneficial Owner of any
Certificate, the Master Servicer or the Special Servicer proposes to take action
(including for this purpose, omitting to take action) that (i) is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's good faith judgment, violate the Servicing Standard, and (ii)
if taken, might nonetheless, in the Master Servicer's or the Special Servicer's
good faith judgment, be considered by other Persons to violate the Servicing
Standard, the Master Servicer or the Special Servicer may but need not seek the
approval of the Certificateholders to such action by delivering to the Trustee a
written notice that (i) states that it is delivered pursuant to this Section
6.06, (ii) identifies the Percentage Interest in each Class of Certificates
beneficially owned by the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer, and (iii) describes in
reasonable detail the action that the Master Servicer or the Special Servicer
proposes to take. The Trustee, upon receipt of such notice, shall forward it to
the Certificateholders (other than the Master Servicer and its Affiliates or the
Special Servicer and its Affiliates, as appropriate) together with such
instructions for response as the Trustee shall reasonably determine. If at any
time Certificateholders holding a majority of the Voting Rights of all
Certificateholders and the Controlling Class Representative (calculated without
regard to the Certificates beneficially owned by the Master Servicer or its
Affiliates or the Special Servicer or its Affiliates, as applicable) shall have
consented in writing to the proposal described in the written notice, and if the
Master Servicer or the Special Servicer shall act as proposed in the written
notice, such action shall be deemed to comply with the Servicing Standard. The
Trustee shall be entitled to reimbursement from the Master Servicer or the
Special Servicer, as applicable, of the reasonable expenses of the Trustee
incurred pursuant to this paragraph. It is not the intent of the foregoing
provision that the Master Servicer or the Special Servicer be permitted to
invoke the procedure set forth herein with respect to routine servicing matters
arising hereunder, except in the case of unusual circumstances.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default. (a) "Master Servicer Event of
Default," wherever used herein, means any one of the following events, provided,
that the Master Servicer Events of Default enumerated below in this Section 7.01
shall apply to each of the General Master Servicer and Master Servicer No. 2,
but the occurrence of a Master Servicer Event of Default with respect to one
Master Servicer shall not be a Master Servicer Event of Default with respect to
the other Master Servicer:
(i) (A) any failure by the Master Servicer to make any deposit
required to its Collection Account on the day and by the time such deposit
was first 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
Master Servicer to deposit into, or remit to the Trustee for deposit into,
any Distribution Account any amount required to be so deposited or
remitted (including, without limitation, any required P&I Advance, unless
the Master Servicer determines such P&I Advance is a Nonrecoverable
Advance), which failure is not remedied by 11:00 a.m. (New York City time)
on the relevant Distribution Date (provided, however, that to the extent
the Master servicer does not timely make such remittance to the Trustee,
the Master Servicer shall pay the Trustee for the account of the Trustee
interest on any amount not timely remitted at the Prime Rate from and
including the applicable required remittance date to, but not including,
the date such remittance is actually made) or any failure by the Master
Servicer to remit to any holder of a Serviced Companion Loan, as and when
required by this Agreement or any related Co-Lender Agreement, any amount
required to be so remitted;
(ii) any failure on the part of the Master Servicer duly to observe
or perform in any material respect any of its other covenants or
obligations contained in this Agreement, which failure continues
unremedied for a period of 30 days (15 days in the case of the Master
Servicer's failure to make a Property Advance or 45 days in the case of
failure to pay the premium for any insurance policy required to be force
placed by the Master Servicer pursuant to the Pooling and Servicing
Agreement or in any event such shorter period of time as is necessary to
avoid the commencement of foreclosure proceedings for any lien relating to
unpaid real estate taxes or assessments or a lapse in any required
insurance coverage if the Master Servicer had prior notice or knowledge of
the related borrower's failure to pay such taxes, assessments or insurance
premium) after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Master Servicer, by
any other party hereto, with a copy to each other party to this Agreement
by the Holders of Certificates of any Class evidencing, as to such Class,
Percentage Interests aggregating not less than 25% or by an affected
Serviced Companion Loan Noteholder; provided, however, if such failure is
capable of being cured and the Master Servicer is diligently pursuing such
cure, such 30- or 45-day period, as applicable, will be extended an
additional 30 days;
(iii) any breach on the part of the Master Servicer of any
representation or warranty contained in Section 2.04(a) which materially
and adversely affects the interests of any Class of Certificateholders or
Serviced Companion Loan Noteholders 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 Servicer by
the Depositor or the Trustee, or to the Master Servicer, the Special
Servicer, the Depositor and the Trustee by the Holders of Certificates of
any Class evidencing, as to such Class, Percentage Interests aggregating
not less than 25% or by an affected Serviced Companion Loan Noteholder;
provided, however, if such breach is capable of being cured and the Master
Servicer is diligently pursuing such cure, such 30-day period will be
extended an additional 30 days;
(iv) 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 Master Servicer and such decree or order shall have remained in force
undischarged, undismissed or unstayed for a period of 60 days;
(v) the Master Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to the Master Servicer
or of or relating to all or substantially all of its property;
(vi) the Master 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;
(vii) the Master Servicer has been removed from S&P's Select
Servicer List as a U.S. Commercial Mortgage Master Servicer;
(viii) a servicing officer of the Master Servicer obtains actual
knowledge that Xxxxx'x has (i) qualified, downgraded or withdrawn its
rating or ratings of one or more Classes of Certificates and/or, if
applicable, one or more classes of the Companion Loan Securities, or (ii)
has placed one or more Classes of Certificates and/or, if applicable, one
or more classes of the Companion Loan Securities, 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 Master Servicer as the sole or material factor in such rating action;
(ix) at any time that any Companion Loan Securities are rated by
Fitch, the Master Servicer fails to be rated at least "CMS3" by Fitch as a
master servicer and that rating is not restored within 60 days after the
subject downgrade or withdrawal;
(x) at any time that any Companion Loan Securities are rated by
Fitch, one or more ratings assigned by Fitch to one or more classes of
Companion Loan Securities have been qualified, downgraded or withdrawn or
otherwise made the subject of a "negative" credit watch that remains in
effect for at least 60 days, which action Fitch has determined, and
provided notification in writing or electronically, including by public
announcement, is solely or in material part a result of the Master
Servicer acting in such capacity; or
(xi) subject to Section 10.16(c), the Master Servicer shall fail to
deliver any Exchange Act reporting items required to be delivered by such
servicer under Article X (other than items to be delivered by a Loan
Seller Sub-Servicer) by the time required under Article X after any
applicable grace periods) (but that with respect to any primary servicer,
sub-servicer or Servicing Function Participant (such entity, the
"Sub-Servicing Entity") retained by the Master Servicer (but excluding any
Loan Seller Sub-Servicer) the Sub-Servicing Entity will be automatically
terminated if it defaults in accordance with the provision of this clause
(ix) and the Master Servicer will be required to provide the reports
required by the Sub-Servicing Entity and if the Master Servicer fails to
do so (beyond the applicable grace period) it shall be an event of default
with respect to the Master Servicer.
Then, and in each and every such case, so long as a Master Servicer Event of
Default shall not have been remedied, the Trustee may (and shall at the written
direction of the Depositor with respect to clause (ix) above), and at the
written direction of the Holders of at least 51% of the aggregate Voting Rights
of all Certificates (or, with respect to an Event of Default specified in clause
(vii) above, 25% of the aggregate Voting Rights of all the Certificates or the
Controlling Class Representative) shall terminate all of the rights and
obligations of the Master Servicer (other than the rights to indemnification
provided in Section 6.03 and compensation provided in Section 3.12). In the case
of clauses (vii) and (viii) above, the Trustee shall be required to notify
Certificateholders of the Master Servicer Event of Default and request whether
such Certificateholders and, if applicable, the Serviced Companion Loan
Noteholders favor such termination.
In the event that either Master Servicer is also the Special
Servicer and the Master Servicer is terminated as provided in this Section 7.01,
then the Master Servicer shall also be terminated as Special Servicer.
(b) "Special Servicer Event of Default," wherever used herein, means
any one of the following events:
(i) any failure by the Special Servicer to deposit into the REO
Account, or to remit to the Master Servicer for deposit into, the related
Collection Account (or, in the case of a Serviced Whole Loan, the related
Serviced Whole Loan Collection 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; provided, however, that the
failure of the Special Servicer to remit such amount to the Master
Servicer shall not be an Event of Default if such failure is remedied
within one Business Day and if the Special Servicer has compensated the
Master Servicer for any loss of income on such amount suffered by the
Master Servicer due to and caused by the late remittance of the Special
Servicer and reimburse the Trust for any resulting advance interest due to
the Master Servicer; or
(ii) any failure on the part of the Special Servicer duly to observe
or perform in any material respect any of its other covenants or
obligations contained in this Agreement, which failure continues
unremedied for a period of 30 days after the date on which written notice
of such failure, requiring the same to be remedied, shall have been given
to the Special Servicer, by any other party hereto, with a copy to each
other party to this Agreement by the Holders of Certificates of any Class
evidencing, as to such Class, Percentage Interests aggregating not less
than 25% or by an affected Serviced Companion Loan Noteholder; provided,
however, if such failure is capable of being cured and the Special
Servicer is diligently pursuing such cure, such 30- or 45-day period, as
applicable, will be extended an additional 30 days;
(iii) any breach on the part of the Special Servicer of any
representation or warranty contained in Section 2.04(b) which materially
and adversely affects the interests of any Class of Certificateholders or
Serviced Companion Loan Noteholders 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 Special Servicer by
the Depositor or the Trustee, or to the Master Servicer, the Special
Servicer, the Depositor and the Trustee by the Holders of Certificates of
any Class evidencing, as to such Class, Percentage Interests aggregating
not less than 25% or by an affected Serviced Companion Loan Noteholder;
provided, however, if such breach is capable of being cured and the
Special Servicer is diligently pursuing such cure, such 30-day period will
be extended an additional 30 days;
(iv) 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 Special Servicer and such decree or order shall have remained in force
undischarged, undismissed or unstayed for a period of 60 days;
(v) 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 the Special Servicer
or of or relating to all or substantially all of its property;
(vi) 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;
(vii) the Special Servicer has been removed from S&P's Select
Servicer List as a U.S. Commercial Mortgage Special Servicer;
(viii) a servicing officer of the Special Servicer obtains actual
knowledge that Xxxxx'x has (i) qualified, downgraded or withdrawn its
rating or ratings of one or more Classes of Certificates and/or, if
applicable, Companion Loan Securities, or (ii) has placed one or more
Classes of Certificates and/or, if applicable, Companion Loan Securities
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 Special Servicer as the sole or material
factor in such rating action;
(ix) at any time that any Companion Loan Securities are rated by
Fitch, the Special Servicer fails to be rated at least "CMS3" by Fitch as
a special servicer and that rating is not restored within 60 days after
the subject downgrade or withdrawal;
(x) at any time that any Companion Loan Securities are rated by
Fitch, one or more ratings assigned by Fitch to one or more classes of
Companion Loan Securities have been qualified, downgraded or withdrawn or
otherwise made the subject of a "negative" credit watch that remains in
effect for at least 60 days, which action Fitch has determined, and
provided notification in writing or electronically, including by public
announcement, is solely or in material part a result of the Special
Servicer acting in such capacity;
(xi) subject to Section 10.16(c) and 10.16(d), the Special Servicer
shall fail to deliver any Exchange Act reporting items required to be
delivered by such servicer under Article X by the time required under
Article X (after any applicable notice, grace and cure periods) but that
with respect to any primary servicer, sub-servicer or Servicing Function
Participant (such entity, the "Sub-Servicing Entity") retained by the
Special Servicer (but excluding one which the Special Servicer has been
directed to retain by a Sponsor or Mortgage Loan Seller) the Sub-Servicing
Entity will be automatically terminated if it defaults in accordance with
the provision of this clause (ix) and the Special Servicer will be
required to provide the reports required by the Sub-Servicing Entity and
if the Special Servicer fails to do so (beyond the applicable grace
period) it shall be an event of default with respect to the Special
Servicer.
Then, and in each and every such case, so long as a Special Servicer Event of
Default shall not have been remedied, the Trustee may (and shall at the written
direction of the Depositor with respect to clause (ix) above), and at the
written direction of the Holders of at least 51% of the aggregate Voting Rights
of all Certificates or, to the extent contemplated by Section 7.01(d), any
affected Serviced Companion Loan Noteholder shall terminate all of the rights
and obligations of the Special Servicer (other than the rights to
indemnification provided in Section 6.03(a) and compensation provided in Section
3.12(c)). In the case of clauses (vii) and (viii) above, the Trustee shall be
required to notify Certificateholders and Serviced Companion Loan Noteholders of
such Special Servicer Event of Default and request whether such
Certificateholders and, if applicable, the Serviced Companion Loan Noteholders,
favor such termination.
(c) In the event that a Master Servicer or the Special Servicer is
terminated pursuant to this Section 7.01, the Trustee (the "Terminating Party")
shall, by notice in writing to the Master Servicer or the Special Servicer, as
the case may be (the "Terminated Party"), terminate all of its rights and
obligations under this Agreement and in and to the Mortgage Loans and the
proceeds thereof, other than any rights the Terminated Party may have hereunder
as a Certificateholder and any rights or obligations that accrued prior to the
date of such termination (including the right to receive all amounts accrued or
owing to it under this Agreement, plus interest at the Advance Rate on such
amounts until received to the extent such amounts bear interest as provided in
this Agreement, with respect to periods prior to the date of such termination
and the right to the benefits of Section 6.03 notwithstanding any such
termination, and with respect to (i) the Master Servicer (or its third party
assignee) it shall also be entitled to the Excess Servicing Strip and (ii) the
Special Servicer, shall also be entitled to receive any Workout Fee subsequent
to its termination as Special Servicer, pursuant to Section 3.12(c) and any
successor Special Servicer shall not be entitled to such Workout Fee received by
the terminated Special Servicer). On or after the receipt by the Terminated
Party of such written notice, all of its authority and power under this
Agreement, whether with respect to the Certificates (except that the Terminated
Party shall retain its rights as a Certificateholder in the event and to the
extent that it is a Certificateholder), the Mortgage Loans, the Serviced
Companion Loans, or otherwise, shall pass to and be vested in the Terminating
Party pursuant to and under this Section and, without limitation, the
Terminating Party is hereby authorized and empowered to execute and deliver, on
behalf of and at the expense of the Terminated 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. The Master
Servicer and the Special Servicer each agree in the event it is terminated
pursuant to this Section 7.01 to promptly (and in any event no later than ten
Business Days subsequent to such notice) provide, at its own expense, the
Terminating Party with all documents and records requested by the Terminating
Party to enable the Terminating Party to assume its functions hereunder, and to
cooperate with the Terminating Party and the successor to its responsibilities
hereunder in effecting the termination of its responsibilities and rights
hereunder, including, without limitation, the transfer to the successor Master
Servicer or Special Servicer or the Terminating Party, as applicable, for
administration by it of all cash amounts which shall at the time be or should
have been credited by the Master Servicer or the Special Servicer to its
Collection Account, the applicable Serviced Whole Loan Collection Account, any
REO Account, any Excess Liquidation Proceeds Account, Lock-Box Account or Cash
Collateral Account or which shall thereafter be received with respect to the
Mortgage Loans, and shall promptly provide the Terminating Party or such
successor Master Servicer or successor Special Servicer (which may include the
Trustee) all documents and records reasonably requested by it, such documents
and records to be provided in such form as the Terminating Party or such
successor Master Servicer or Special Servicer shall reasonably request
(including electromagnetic form), to enable it to assume the Master Servicer's
or Special Servicer's function hereunder. All reasonable costs and expenses of
the Terminating Party or the successor Master Servicer or successor Special
Servicer incurred in connection with transferring the Mortgage Files to the
successor Master Servicer or Special Servicer and amending this Agreement to
reflect such succession as successor Master Servicer or successor Special
Servicer pursuant to this Section 7.01 shall be paid by the predecessor Master
Servicer or the Special Servicer, as applicable, upon presentation of reasonable
documentation of such costs and expenses. If the predecessor Master Servicer or
Special Servicer (as the case may be) has not reimbursed the Terminating Party
or the successor Master Servicer or Special Servicer for such expenses within 90
days after the presentation of reasonable documentation, such expense shall be
reimbursed by the Trust Fund; provided that the Terminated Party shall not
thereby be relieved of its liability for such expenses. If and to the extent
that the Terminated Party has not reimbursed such costs and expenses, the
Terminating Party shall have an affirmative obligation to take all reasonable
actions to collect such expenses on behalf of the Trust Fund.
(d) Notwithstanding Section 7.01(a), (b) and (c) and Section 7.05:
(1) if any Event of Default on the part of the Master Servicer occurs that
affects a Serviced Companion Loan Noteholder or any class of Companion Loan
Securities, and if the Master Servicer is not otherwise terminated in accordance
with Section 7.01(a), (b) and (c), then the Master Servicer may not be
terminated by or at the direction of the related Serviced Companion Loan
Noteholder; and (2) if any Event of Default on the part of the Master Servicer
occurs that affects solely a Serviced Companion Loan Noteholder or any class of
Companion Loan Securities, then the Master Servicer may not be terminated by the
Trustee; provided, however, in the case of (1) or (2), at the request of such
affected Serviced Companion Loan Noteholder, subject to the terms of the related
Co-Lender Agreement, the Trustee on behalf of the Trust shall require the Master
Servicer to appoint, within 30 days of the Trustee's request, a Sub-Servicer
(or, if the related Serviced Whole Loan is currently being sub-serviced, to
replace, within 30 days of the Trustee's request, the then-current Sub-Servicer
with a new Sub-Servicer) with respect to the related Serviced Whole Loan;
provided, that if the Master Servicer does not replace the then-current
Sub-Servicer with a new Sub-Servicer, the Serviced Companion Loan Noteholder
shall do so in accordance with this Agreement. In connection with the
appointment of a Sub-Servicer in accordance with this Section 7.01(d), the
Master Servicer shall obtain, at its own expense, written confirmation from each
Rating Agency (and, if applicable, Fitch) that such appointment will not result
in a downgrade, withdrawal or qualification with respect to any Class of
Certificates or, if applicable, any related class of Companion Loan Securities
rated by such rating agency. The related Sub-Servicing Agreement shall provide
that any Sub-Servicer appointed in accordance with this Section 7.01(d) shall be
responsible for all duties, and shall be entitled to all compensation, of the
Master Servicer under this Agreement with respect to the subject Serviced Whole
Loan, except that the Master Servicer shall be entitled to retain that portion
of the Master Servicing Fee for the Mortgage Loan or REO Loan included in the
subject Serviced Whole Loan that accrues at a rate equal to 0.01% per annum.
Such Sub-Servicing Agreement shall also provide that such Sub-Servicer shall
agree to become the master servicer under a separate servicing agreement (as
contemplated by the related Co-Lender Agreement) in the event that the subject
Serviced Whole Loan is no longer to be serviced and administered hereunder,
which separate servicing agreement shall contain servicing and administration,
limitation of liability, indemnification and servicing compensation provisions
substantially similar to the corresponding provisions of this Agreement, except
for the fact that the subject Serviced Whole Loan and the related Mortgaged
Property shall be the sole assets serviced and administered thereunder and the
sole source of funds thereunder. If any Sub-Servicer appointed in accordance
with this Section 7.01(d) shall at any time resign or be terminated, then
(subject to the related Co-Lender Agreement) the Master Servicer shall be
required to promptly appoint a substitute Sub-Servicer, which appointment shall
not result in a downgrade, withdrawal or qualification with respect to any Class
of Certificates or, if applicable, any related class of Companion Loan
Securities rated by either Rating Agency or, if applicable, Fitch (as evidenced
in a writing obtained by the Master Servicer, at its own expense, from each
applicable rating agency). In the event that a successor Master Servicer is
acting hereunder and such successor Master Servicer desires to terminate the
Sub-Servicer appointed under this Section 7.01(d), the terminated Master
Servicer that was responsible for the Event of Default that led to the
appointment of such Sub-Servicer shall be responsible for all costs incurred in
connection with such termination, including the payment of any termination fee.
Further notwithstanding Section 7.01(b) and Section 7.05, if any
Event of Default on the part of the Special Servicer occurs that affects a
Serviced Companion Loan Noteholder, and the Special Servicer is not otherwise
terminated in accordance with Section 7.01(b), then such Serviced Companion Loan
Noteholder may require the Trustee on behalf of the Trust to terminate the
duties and obligations of the Special Servicer with respect to the related
Serviced Whole Loan only, but as to no other Mortgage Loan; and, in such event,
subject to any applicable consultation rights of any particular related Serviced
Companion Loan Noteholder under the related Co-Lender Agreement, the appropriate
party shall appoint in accordance with this Agreement, within 30 days of such
Serviced Companion Loan Noteholder's request, a replacement special servicer
with respect to the subject Serviced Whole Loan. In connection with the
appointment of a replacement special servicer with respect to the subject
Serviced Whole Loan at the request of a related Serviced Companion Loan
Noteholder in accordance with this Section 7.01(d), the Special Servicer shall
obtain written confirmation from each Rating Agency (and, if applicable, Fitch)
that such appointment will not result in a downgrade, qualification or
withdrawal with respect to any Class of Certificates or, if applicable, any
related class of Companion Loan Securities rated by such rating agency (such
rating confirmation to be an expense of the terminated Special Servicer or, if
not paid thereby, an expense of the requesting Serviced Companion Loan
Noteholder). Any replacement special servicer appointed at the request of a
Serviced Companion Loan Noteholder in accordance with this Section 7.01(d) shall
be responsible for all duties, and shall be entitled to all compensation, of the
Special Servicer under this Agreement with respect to the subject Serviced Whole
Loan. Any replacement special servicer appointed at the request of a Serviced
Companion Loan Noteholder in accordance with this Section 7.01(d) hereby agrees
to become, upon request, the special servicer under a separate servicing
agreement (as contemplated by the related Co-Lender Agreement) in the event that
the subject Serviced Whole Loan is no longer to be serviced and administered
hereunder, which separate servicing agreement shall contain servicing and
administration, limitation of liability, indemnification and servicing
compensation provisions substantially similar to the corresponding provisions of
this Agreement, except for the fact that the subject Serviced Whole Loan and the
related Mortgaged Property shall be the sole assets serviced and administered
thereunder and the sole source of funds thereunder. If any replacement special
servicer appointed at the request of a Serviced Companion Loan Noteholder in
accordance with this Section 7.01(d) shall at any time resign or be terminated,
then (subject to any applicable consultation rights of any particular related
Serviced Companion Loan Noteholder under the related Co-Lender Agreement) the
appropriate party in accordance with this Agreement shall be required to
promptly appoint a substitute replacement special servicer, which appointment
shall not result in a downgrade, qualification or withdrawal (as evidenced in
writing by each Rating Agency and, if applicable, Fitch) with respect to any
Class of Certificates or, if the subject Serviced Whole Loan includes a
Specially Designated Securitized Non-Mortgage Loan, with respect to any related
class of Companion Loan Securities.
In no event shall any waiver of an Event of Default pursuant to
Section 7.04 affect the rights of any Serviced Companion Loan Noteholder under
this Section 7.01(d).
Section 7.02 Trustee to Act; Appointment of Successor. On and after
the time the Master Servicer or the Special Servicer receives a notice of
termination pursuant to Section 7.01, the Terminating Party (subject to Sections
7.01(c)) shall be its successor 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, except as provided herein, shall be subject to all
the responsibilities, duties, limitations on liability and liabilities relating
thereto and arising thereafter placed on the Master Servicer or Special Servicer
by the terms and provisions hereof, provided, however, that (i) the Terminating
Party shall have no responsibilities, duties, liabilities or obligations with
respect to any act or omission of the Master Servicer or Special Servicer and
(ii) any failure to perform, or delay in performing, such duties or
responsibilities caused by the Terminated Party's failure to provide, or delay
in providing, records, tapes, disks, information or monies shall not be
considered a default by such successor hereunder. The Trustee, as successor
Master Servicer or successor Special Servicer, shall be indemnified to the full
extent provided to the Master Servicer or Special Servicer, as applicable, under
this Agreement prior to the Master Servicer's or the Special Servicer's
termination. The appointment of a successor Master Servicer or successor Special
Servicer shall not affect any liability of the predecessor Master Servicer or
Special Servicer which may have arisen prior to its termination as a Master
Servicer or Special Servicer. The Terminating Party shall not be liable for any
of the representations and warranties of the Master Servicer or Special Servicer
herein or in any related document or agreement, for any acts or omissions of the
predecessor Master Servicer or predecessor Special Servicer or for any losses
incurred in respect of any Permitted Investment by the Master Servicer pursuant
to Section 3.07 hereunder nor shall the Trustee be required to purchase any
Mortgage Loan or any Serviced Companion Loan hereunder. As compensation
therefor, the Terminating Party as successor Master Servicer or successor
Special Servicer shall be entitled to the Servicing Compensation (subject to the
Master Servicer's (or its third party assignee) right to the Excess Servicing
Strip in accordance with Section 3.12) or Special Servicing Compensation, as
applicable, and all funds relating to the Mortgage Loans or the Serviced
Companion Loans that accrue after the date of the Terminating Party's succession
to which such predecessor Master Servicer or Special Servicer would have been
entitled if such predecessor Master Servicer or Special Servicer, as applicable,
had continued to act hereunder. In the event any Advances made by the Master
Servicer or the Trustee shall at any time be outstanding, or any amounts of
interest thereon shall be accrued and unpaid, all amounts available to repay
Advances and interest hereunder shall be applied entirely to the Advances made
by the Trustee (and the accrued and unpaid interest thereon), until such
Advances and interest shall have been repaid in full. Notwithstanding the above,
the Trustee may, if it shall be unwilling to so act, or shall (i) if it is
unable to so act, (ii) if the Holders of Certificates entitled to at least 25%
of the aggregate Voting Rights or an affected Serviced Companion Loan Noteholder
so request in writing to the Trustee or if the Trustee is not an "approved"
servicer by any of the Rating Agencies for mortgage pools similar to the Trust
Fund, promptly appoint, or petition a court of competent jurisdiction to
appoint, any established mortgage loan servicing institution the appointment of
which will not result in a downgrade, qualification or withdrawal of the
then-current rating or ratings assigned to any Class of Certificates or
Companion Loan Securities, evidenced in writing by each Rating Agency, as the
successor to the Master Servicer or Special Servicer, as applicable, hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of the Master Servicer or Special Servicer hereunder. No appointment
of a successor to the Master Servicer or Special Servicer hereunder shall be
effective until the assumption by such successor of all the Master Servicer's or
Special Servicer's responsibilities, duties and liabilities hereunder. Pending
appointment of a successor to the Master Servicer (or the Special Servicer if
the Special Servicer is also a Master Servicer) hereunder, unless the Trustee
shall be prohibited by law from so acting, the Trustee shall act in such
capacity as hereinabove provided. Pending the appointment of a successor to the
Special Servicer, the Trustee shall act in such capacity. In connection with
such appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans, Serviced Companion Loans, or otherwise as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted to the Terminated Party hereunder, provided, further, that if no
successor to the Terminated Party can be obtained to perform the obligations of
such Terminated Party hereunder after consultation with the Controlling Class
Representative or if such default relates solely to a Serviced Whole Loan, the
Directing Certificateholder, additional amounts shall be paid to such successor
and such amounts in excess of that permitted the Terminated Party shall be
treated as Realized Losses. The Depositor, the Trustee, the Master Servicer or
Special Servicer and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession.
Section 7.03 Notification to Certificateholders and Other Persons.
(a) Upon any termination pursuant to Section 7.01 above or appointment of a
successor to the Master Servicer or the Special Servicer, the Trustee shall give
prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register, to each Rating Agency and to
each Serviced Companion Loan Noteholder at its address appearing in the Serviced
Companion Loan Noteholder Register.
(b) Within 30 days after the occurrence of any Event of Default of
which a Responsible Officer of the Trustee has actual knowledge, the Trustee
shall transmit by mail to all Holders of Certificates, each Rating Agency, each
Serviced Companion Loan Noteholder notice of such Event of Default, unless such
Event of Default shall have been cured or waived.
Section 7.04 Other Remedies of Trustee. During the continuance of
any Servicer Event of Default or a Special Servicer Event of Default, so long as
the Master Servicer Event of Default or Special Servicer Event of Default, if
applicable, shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right, in its own name as Trustee of
an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders and,
in the case of any Serviced Companion Loan, of the related Serviced Companion
Loan Noteholder (including the institution and prosecution of all judicial,
administrative and other proceedings and the filing of proofs of claim and debt
in connection therewith). In such event, the legal fees, expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Trust Fund (and, if and to the extent that such action and/or
liability directly relates to any Serviced Whole Loan, first of the related
Serviced B Loan Noteholders, if any, and second, to the extent such expense
remains unpaid, of the Trust Fund (or in the case of a Serviced Whole Loan with
a Pari Passu Companion Loan, of the Trust Fund and any related Pari Passu
Companion Loan on a pro rata basis based their outstanding principal balances;
provided, that with respect to the Spectrum Centre Whole Loan, such allocation
first to the related Serviced B Loan Noteholders shall only apply during the
occurrence and continuance of a material default under the Mortgage Loan
Documents related to the Spectrum Centre Whole Loan as defined in Section 3(b)
of the Spectrum Centre Intercreditor Agreement) and the Trustee shall be
entitled to be reimbursed therefor from the Collection Account (and, if
applicable, the applicable Serviced Whole Loan Collection Account) as provided
in Section 3.06). Except as otherwise expressly provided in this Agreement, no
remedy provided for by this Agreement shall be exclusive of any other remedy,
and each and every remedy shall be cumulative and in addition to any other
remedy, and no delay or omission to exercise any right or remedy shall impair
any such right or remedy or shall be deemed to be a waiver of any Servicer Event
of Default or Special Servicer Event of Default, if applicable.
Section 7.05 Waiver of Past Events of Default; Termination. The
Holders of Certificates evidencing not less than 66-2/3% of the aggregate Voting
Rights of the Certificates may, together with each affected Serviced Companion
Loan Noteholder (to the extent they are adversely affected by such Event of
Default), on behalf of all Holders of Certificates may waive any default by
either Master Servicer or Special Servicer in the performance of its obligations
hereunder and its consequences, except a default in making any required deposits
(including, with respect to the Master Servicer, P&I Advances) to or payments
from its Collection Account, any Serviced Whole Loan Collection Account or the
Lower-Tier Distribution Account, in remitting payments as received or providing
the items required by Section 10.08, 10.11, 10.12, 10.13, in each case in
accordance with this Agreement. Upon any such waiver of a past default, such
default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Section 7.06 Trustee as Maker of Advances. In the event that the
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 five Business Days of the Event of Default resulting from such failure by
the Master Servicer with respect to Property Advances to the extent a
Responsible Officer of the Trustee has actual knowledge of such failure with
respect to such Property Advances and (y) by 12:00 noon (New York City time) on
the related Distribution Date with respect to P&I Advances pursuant to the
Trustee's notice of failure pursuant to Section 4.07(a) unless the Trustee has
received notice that such failure has been cured by 11:00 a.m. on such
Distribution Date. With respect to any such Advance made by the Trustee, the
Trustee shall succeed to all of the Master Servicer's rights with respect to
Advances hereunder, including, without limitation, the Master Servicer's rights
of reimbursement and interest on each Advance at the Advance Rate, and rights to
determine that a proposed Advance is a Nonrecoverable P&I Advance or Property
Advance, as the case may be (without regard to any impairment of any such rights
of reimbursement caused by the Master Servicer's default in its obligations
hereunder); provided, however, that if Advances made by the Trustee and the
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 the Master
Servicer for such Advances. The Trustee shall be entitled to conclusively rely
on any notice given with respect to a Nonrecoverable Advance or any
determination of nonrecoverability in connection therewith by the Master
Servicer hereunder.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee. (a) The Trustee undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement and no permissive right of the Trustee shall be construed as a duty.
During the continuance of an Event of Default of which a Responsible Officer of
the Trustee has actual knowledge, the Trustee, subject to the provisions of
Sections 7.02 and 7.05 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 such person's own affairs.
(b) The Trustee, upon receipt of any resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform on their face to the requirements of this Agreement; provided, however,
that, the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument provided to it hereunder. If any such instrument is found not
to conform on its face to the requirements of this Agreement in a material
manner, the Trustee shall request the provider of such instrument to have the
instrument corrected, and if the instrument is not corrected to the Trustee's
reasonable satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
(c) Neither the Trustee nor any of its officers, directors,
employees, agents or "control" persons within the meaning of the Act shall have
any liability arising out of or in connection with this Agreement, provided,
that, subject to Section 8.02, no provision of this Agreement shall be construed
to relieve the Trustee, or any such person, from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct or its
own bad faith; and provided, further, that:
(i) The Trustee's duties and obligations 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 resolutions, certificates,
statements, reports, opinions, documents, orders or other instruments
furnished to the Trustee that conform on their face to the requirements of
this Agreement to the extent set forth herein without responsibility for
investigating the contents thereof;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(iii) The Trustee shall not be personally 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
greater than a majority of the Percentage Interests (or such other
percentage as is specified herein) of each affected Class, or of the
aggregate Voting Rights of the Certificates, 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;
(iv) Neither the Trustee nor any of its directors, officers,
employees, agents or control persons shall be responsible for any act or
omission of any Custodian, Paying Agent or Certificate Registrar that is
not an Affiliate of the Trustee and that is selected other than by the
Trustee, performed or omitted in compliance with any custodial or other
agreement, or any act or omission of the Master Servicer, Special
Servicer, the Depositor or any other Person, including, without
limitation, in connection with actions taken pursuant to this Agreement;
(v) The Trustee shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its
respective duties as Trustee in accordance with this Agreement (and, if it
does, all legal expenses and costs of such action shall be expenses and
costs of the Trust Fund and, in the case of any Serviced Whole Loan, first
of the related Serviced B Loan Noteholders, if any, and second, to the
extent such expense remains unpaid, of the Trust Fund (or in the case of a
Serviced Whole Loan with a Pari Passu Companion Loan, of the Trust Fund
and any related Pari Passu Companion Loan on a pro rata basis based their
outstanding principal balances and Pari Passu Companion Loan in accordance
with the related Co-Lender Agreement; provided, that with respect to the
Spectrum Centre Whole Loan, such allocation first to the related Serviced
B Loan Noteholders shall only apply during the occurrence and continuance
of a material default under the Mortgage Loan Documents related to the
Spectrum Centre Whole Loan as defined in Section 3(b) of the Spectrum
Centre Intercreditor Agreement), and the Trustee shall be entitled, as
provided in Section 3.06 hereof, to be reimbursed therefor from amounts on
deposit in the Collection Account and with respect to the Serviced Whole
Loans, the related Serviced Whole Loan Collection Account and identified
on the Trust Ledger, unless such legal action arises out of the negligence
or bad faith of the Trustee or any breach of an obligation,
representation, warranty or covenant of the Trustee contained herein; and
(vi) The Trustee shall not be charged with knowledge of any act,
failure to act or breach of any Person upon the occurrence of which the
Trustee may be required to act, unless a Responsible Officer of the
Trustee obtains actual knowledge of such failure. The Trustee shall not be
deemed to have actual knowledge of either Master Servicer's or the Special
Servicer's failure to provide scheduled reports, certificates and
statements when and as required to be delivered to the Trustee pursuant to
this Agreement.
None of the provisions contained in this Agreement shall require
either the Trustee, in its capacity as Trustee to expend or risk its own funds,
or otherwise incur financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if in the opinion
of the Trustee the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations of
the Master Servicer or the Special Servicer under this Agreement, except during
such time, if any, as the Trustee shall be the successor to, and be vested with
the rights, duties, powers and privileges of, either Master Servicer or the
Special Servicer in accordance with the terms of this Agreement. The Trustee
shall not be required to post any surety or bond of any kind in connection with
its performance of its obligations under this Agreement and the Trustee shall
not be liable for any loss on any investment of funds pursuant to this
Agreement. Notwithstanding any other provision hereof, however, whenever acting
as or instead of a Master Servicer or Special Servicer hereunder or the Trustee
shall comply with the Servicing Standard.
Section 8.02 Certain Matters Affecting the Trustee. (a) Except as
otherwise provided in Section 8.01:
(i) The Trustee may request and/or 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 and
the Trustee shall not have responsibility to ascertain or confirm the
genuineness of any such party or parties;
(ii) The Trustee may consult with counsel and 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 with such Opinion of Counsel;
(iii) (A) The Trustee shall not be under any obligation 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 reasonable
security or indemnity against the costs, expenses and liabilities which
may be incurred therein or thereby, provided that nothing contained herein
shall relieve the Trustee of the obligations, upon the occurrence of an
Event of Default (which has not been cured or waived) of which a
Responsible Officer of the Trustee has actual knowledge, 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 person would
exercise or use under the circumstances in the conduct of such person's
own affairs; and (B) the right of the Trustee to perform any discretionary
act enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act;
(iv) Neither the Trustee nor any of its directors, officers,
employees, Affiliates, agents or "control" persons within the meaning of
the Act shall be personally liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by the Trustee to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(v) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal,
bond or other paper or document, unless requested in writing to do so by
Holders of Certificates entitled to at least 25% (or such other percentage
as is specified herein) of the Percentage Interests of any affected Class;
provided, however, that if the payment within a reasonable time to the
Trustee 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, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity
against such expense or liability as a condition to taking any such
action. The reasonable expense of every such investigation shall be paid
by the Master Servicer or the Special Servicer if an Event of Default
shall have occurred and be continuing relating to the Master Servicer, or
the Special Servicer, respectively, and otherwise by the
Certificateholders requesting the investigation; and
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys but shall not be relieved of the obligations hereunder,
provided, however, that the Trustee may not perform any duties hereunder
through any Person that is a Prohibited Party.
(b) Following the Startup Day, the Trustee shall not, except as
expressly required by any provision of this Agreement, accept any contribution
of assets to the Trust Fund unless the Trustee shall have received an Opinion of
Counsel (the costs of obtaining such opinion to be borne by the Person
requesting such contribution) to the effect that the inclusion of such assets in
the Trust Fund will not cause the Lower-Tier REMIC or the Upper-Tier REMIC to
fail to qualify as a REMIC, or the Grantor Trust to fail to qualify as a grantor
trust, at any time that any Certificates are outstanding, or subject 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, or
cause the Grantor Trust not to be treated as a grantor trust.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
The Trustee shall not have a duty to conduct any affirmative
investigation as to the occurrence of any condition requiring the repurchase of
any Mortgage Loan by any Mortgage Loan Seller pursuant to this Agreement or the
eligibility of any Mortgage Loan for purposes of this Agreement.
Section 8.03 Trustee Not Liable for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall not be taken as the
statements of the Trustee, the Master Servicer, or the Special Servicer and the
Trustee, the Master Servicer and the Special Servicer assume no responsibility
for their correctness. The Trustee, the Master Servicer and the Special Servicer
make no representations or warranties as to the validity or sufficiency of this
Agreement, of the Certificates or any prospectus used to offer the Certificates
for sale or the validity, enforceability or sufficiency of any Mortgage Loan, or
related document. The Trustee shall not at any time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Mortgage, any Mortgage Loan, or the perfection and priority of any Mortgage
or the maintenance of any such perfection and priority, or for or with respect
to the sufficiency of the Trust Fund or its ability to generate the payments to
be distributed to Certificateholders under this Agreement. Without limiting the
foregoing, the Trustee shall not be liable or responsible for: (i) the
existence, condition and ownership of any Mortgaged Property; (ii) the existence
of any hazard or other insurance thereon (other than if the Trustee shall assume
the duties of either Master Servicer or the Special Servicer pursuant to Section
7.02) or the enforceability thereof; (iii) the existence of any Mortgage Loan or
the contents of the related Mortgage File on any computer or other record
thereof (other than if the Trustee shall assume the duties of either Master
Servicer or the Special Servicer pursuant to Section 7.02); (iv) the validity of
the assignment of any Mortgage Loan to the Trust Fund or of any intervening
assignment; (v) the completeness of any Mortgage File; the performance or
enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of either Master Servicer or the Special Servicer pursuant to Section
7.02); (vi) the compliance by the Depositor, the Master Servicer or the Special
Servicer with any warranty or representation made under this Agreement or in any
related document or the accuracy of any such warranty or representation prior to
the Trustee's receipt of notice or other discovery of any non-compliance
therewith or any breach thereof; (vii) any investment of monies by or at the
direction of either Master Servicer or any loss resulting therefrom, the acts or
omissions of any of the Depositor, the Master Servicer or the Special Servicer
(other than if the Trustee shall assume the duties of either Master Servicer or
Special Servicer pursuant to Section 7.02) or any sub-servicer or any Borrower;
any action of the Master Servicer or Special Servicer (other than if the Trustee
shall assume the duties of either Master Servicer or Special Servicer pursuant
to Section 7.02) or any sub-servicer taken in the name of the Trustee, except to
the extent such action is taken at the express written direction of the Trustee;
(viii) the failure of either Master Servicer or the Special Servicer or any
sub-servicer to act or perform any duties required of them on behalf of the
Trust Fund or the Trustee hereunder; or (ix) any action by or omission of the
Trustee taken at the instruction of either Master Servicer or the Special
Servicer (other than if the Trustee shall assume the duties of either Master
Servicer or the Special Servicer pursuant to Section 7.02) unless the taking of
such action is not permitted by the express terms of this Agreement; provided,
however, that the foregoing shall not relieve the Trustee of its obligation to
perform its duties as specifically set forth in this Agreement. The Trustee
shall not be accountable for the use or application by the Depositor, the Master
Servicer or the Special Servicer of any of the Certificates or of the proceeds
of such Certificates, or for the use or application of any funds paid to the
Depositor, the Master Servicer or the Special Servicer in respect of the
assignment of the Mortgage Loans or deposited in or withdrawn from the
Collection Accounts, any Serviced Whole Loan Collection Account, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Grantor Trust
Distribution Account, the Lock-Box Account, the Cash Collateral Account, the
Reserve Accounts, the Interest Reserve Account, any REO Account or any Excess
Liquidation Proceeds Account or any other account maintained by or on behalf of
the Master Servicer or the Special Servicer, other than any funds held by the
Trustee. The Trustee shall not have any responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder (unless the Trustee shall have become the successor Master
Servicer) or to record this Agreement. In making any calculation hereunder which
includes as a component thereof the payment or distribution of interest for a
stated period at a stated rate "to the extent permitted by applicable law," the
Trustee shall assume that such payment is so permitted unless a Responsible
Officer of the Trustee has actual knowledge, or receives an Opinion of Counsel
(at the expense of the Person asserting the impermissibility) to the effect,
that such payment is not permitted by applicable law. The Depositor is not
obligated to monitor or supervise the performance of the Trustee under this
Agreement or otherwise.
Section 8.04 Trustee May Own Certificates. The Trustee and any agent
of the Trustee in its individual capacity or any other capacity may become the
owner or pledgee of Certificates, and may deal with the Depositor, the 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 such agent, as the case may be.
Section 8.05 Payment of Trustee's Fees and Expenses;
Indemnification. (a) On each Distribution Date, prior to the distribution of
amounts to the Certificateholders, the Trustee shall be entitled to pay itself
the Trustee Fee as reasonable compensation from amounts remitted to the
Lower-Tier Distribution Account (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) 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
hereunder at the Trustee Fee Rate.
(b) In the event that the Trustee assumes the servicing
responsibilities of either Master Servicer or the Special Servicer hereunder
pursuant to or otherwise arising from the resignation or removal of the Master
Servicer or the Special Servicer, the Trustee shall be entitled to the
compensation to which the Master Servicer or the Special Servicer, as the case
may be, would have been entitled (other than the rights of the Special Servicer
to receive any Workout Fee specified in Section 3.12(c) in the event that the
Special Servicer is terminated).
(c) The Trustee shall be paid or reimbursed by the Trust Fund upon
its request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee pursuant to and in accordance with any of the provisions of
this Agreement (including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its employ),
which, to the extent not previously paid pursuant to Section 3.06(d), the
Trustee will be entitled to withdraw from the Distribution Accounts prior to the
distribution to Certificateholders to the extent set forth herein and to the
extent such payments are "unanticipated expenses incurred by the REMIC" within
the meaning of Treasury Regulations Section 1.860G-1(b)(iii) except any such
expense, disbursement or advance as may arise from its negligence or bad faith;
provided, however, that, subject to the last paragraph of Section 8.01, the
Trustee shall not refuse to perform any of its duties hereunder solely as a
result of the failure to be paid the Trustee Fee and the Trustee's expenses. The
term "unanticipated expenses incurred by the REMIC" shall include any fees,
expenses and disbursement of any separate Trustee or co-Trustee appointed
hereunder, only to the extent such fees, expenses and disbursements were not
reasonably anticipated as of the Closing Date and are attributable to the
Lower-Tier REMIC or the Upper-Tier REMIC or the Grantor Trust and the losses,
liabilities, damages, claims or expenses (including reasonable attorneys' fees)
incurred or advanced by an Indemnified Party in connection with any litigation
arising out of this Agreement attributable to the Lower-Tier REMIC or the
Upper-Tier REMIC or the Grantor Trust, including, without limitation, under
Section 2.03, Section 3.10, the third paragraph of Section 3.11, Section 4.05
and Section 7.01.
The Master Servicer and the Special Servicer covenant and agree to
pay or reimburse the Trustee for the reasonable expenses, disbursements and
advances incurred or made by the Trustee in connection with any transfer of the
servicing responsibilities of the Master Servicer or the Special Servicer,
respectively, hereunder, pursuant to or otherwise arising from the resignation
or removal of the Master Servicer or Special Servicer (except in the case of
removal of the Special Servicer without cause), as applicable, in accordance
with any of the provisions of this Agreement (and including the reasonable fees
and expenses and disbursements of its counsel and all other persons not
regularly in its employ), except any such expense, disbursement or advance as
may arise from the negligence or bad faith of the Trustee.
(d) Each of the Paying Agent, the Certificate Registrar, the
Custodian, the Depositor, the Master Servicer and the Special Servicer (each, in
such context, an "Indemnifying Party") shall indemnify the Trustee (both in its
capacity as Trustee and individually) and its Affiliates and each of the
directors, officers, employees and agents of the Trustee and its Affiliates
(each, in such context, an "Indemnified Party"), and hold each of them harmless
against any and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and any other
costs, fees and expenses that the Indemnified Party may sustain in connection
with this Agreement (including, without limitation, reasonable fees and
disbursements of counsel incurred by the Indemnified Party in any action or
proceeding between the Indemnifying Party and the Indemnified Party or between
the Indemnified Party and any third party or otherwise) related to each such
Indemnifying Party's respective willful misconduct, bad faith, fraud or
negligence in the performance of each of its respective duties hereunder or by
reason of reckless disregard of its respective obligations and duties hereunder
(including in the case of the Master Servicer, any agent of the Master Servicer
or sub-servicer).
(e) The Trust Fund shall indemnify each Indemnified Party from, and
hold it harmless against, any and all losses, liabilities, damages, claims or
unanticipated expenses (including, without limitation, reasonable fees and
disbursements of counsel incurred by the Indemnified Party in any action or
proceeding between the Indemnifying Party and the Indemnified Party or between
the Indemnified Party and any third party or otherwise) arising in respect of
this Agreement, the Mortgage Loans or the Certificates other than (i) those
resulting from the negligence, fraud, bad faith or willful misconduct of the
Indemnified Party and (ii) those as to which such Indemnified Party is entitled
to indemnification pursuant to Section 8.05(d). The right of reimbursement of
the Indemnified Parties under this Section 8.05(e) shall be senior to the rights
of all Certificateholders.
(f) Notwithstanding anything herein to the contrary, this Section
8.05 shall survive the termination or maturity of this Agreement or the
resignation or removal of the Trustee, as the case may be, regarding rights
accrued prior to such resignation or removal and (with respect to any acts or
omissions during its respective tenures) the resignation, removal or termination
of the Master Servicer, the Special Servicer, the Paying Agent, the Certificate
Registrar or the Custodian.
(g) This Section 8.05 shall be expressly construed to include, but
not be limited to, such indemnities, compensation, expenses, disbursements,
advances, losses, liabilities, damages and the like, as may pertain or relate to
any environmental law or environmental matter.
(h) The Trustee (the "Indemnifying Party") shall indemnify the
Master Servicer and the Special Servicer and their respective Affiliates and
each of the directors, officers, employees and agents of the Master Servicer and
the Special Servicer and their respective Affiliates (each, in such context, an
"Indemnified Party"), and hold each of them harmless against any and all claims,
losses, damages, penalties, fines, forfeitures, reasonable and necessary legal
fees and related costs, judgments, and any other costs, fees and expenses that
the Indemnified Party may sustain in connection with this Agreement (including,
without limitation reasonable fees and disbursements of counsel incurred by the
Indemnified Party in any action or proceeding between the Indemnifying Party and
the Indemnified Party or between the Indemnified Party and any third party or
otherwise) related to the Indemnifying Party's willful misconduct, bad faith,
fraud or negligence in the performance of its duties hereunder or by reason of
reckless disregard of its obligations and duties hereunder.
Section 8.06 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times (i) be a corporation or association organized and
doing business under the laws of any state or the United States of America, (ii)
be authorized under such laws to exercise corporate trust powers and to accept
the trust conferred under this Agreement, (iii) have a combined capital and
surplus of at least $50,000,000, (iv) have its long-term unsecured debt
obligations rated at least "A+" by S&P and "Aa3" by Xxxxx'x, and have its
short-term unsecured debt obligations rated at least "A-1" by S&P or, in each
case, such other ratings acceptable to the Rating Agencies, (v) be subject to
supervision or examination by federal or state authority and shall not be an
Affiliate of either Master Servicer (except during any period when the Trustee
has assumed the duties of a Master Servicer pursuant to Section 7.02) and (vi)
not be a Prohibited Party. Notwithstanding the foregoing, if the Trustee meets
the provisions of clauses (i) through (iii), (v) and (vi) above, but does not
meet the provisions of clause (iv) above, the Trustee shall be deemed to meet
the provisions of such clause (iv) if it appoints a fiscal agent as a back-up
liquidity provider, provided that such fiscal agent meets the provisions of
clause (iv) above and shall have assumed in writing all obligations of the
Trustee to make Advances under this Agreement as and when required of the
Trustee. If a corporation or association publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for purposes of this Section the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If the
place of business from which the Trustee administers the Trust Fund is a state
or local jurisdiction that imposes a tax on the Trust Fund or the net income of
either Trust REMIC (other than a tax corresponding to a tax imposed under the
REMIC Provisions) the Trustee shall elect either to (i) resign immediately in
the manner and with the effect specified in Section 8.07, (ii) pay such tax and
continue as Trustee or (iii) administer the Trust Fund from a state and local
jurisdiction that does not impose such a tax. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07.
Section 8.07 Resignation and Removal of the Trustee. The Trustee may
at any time resign and be discharged from the trusts hereby created by giving
written notice thereof to the Trustee, the Depositor, the Master Servicer, the
Special Servicer and each Rating Agency. Upon such notice of resignation from
the Trustee, the Master Servicer shall promptly appoint a successor trustee, the
appointment of which is subject to the requirements contained in Section 8.06.
If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor or either Master Servicer, or if at any time
the Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee (or of its property) shall be appointed,
or any public officer shall take charge or control of the Trustee (or of its
property or affairs) for the purpose of rehabilitation, conservation or
liquidation, then the Depositor or either Master Servicer may remove the Trustee
and the Depositor or either Master Servicer shall promptly appoint a successor
trustee by written instrument, which shall be delivered to the Trustee so
removed and to the successor trustee.
The Holders of Certificates entitled to at least a majority of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in seven originals, signed by such Holders
or their attorneys-in-fact duly authorized, one complete set of which
instruments shall be delivered to the Depositor, one complete set to the Master
Servicer and Special Servicer, one complete set to the Trustee so removed, and
one complete set to the successor trustee.
In addition, if the Trustee is terminated without cause, the
terminating party shall pay all of the expenses of the Trustee necessary to
affect the transfer of its responsibilities to the successor trustee.
In the event that the Trustee is terminated or removed pursuant to
this Section 8.07, all of its rights and obligations under this Agreement and in
and to the Mortgage Loans shall be terminated, other than any rights or
obligations that accrued prior to the date of such termination or removal
(including the right to receive all fees, expenses and other amounts accrued or
owing to it under this Agreement, plus interest at the Advance Rate on all such
amounts until received to the extent such amounts bear interest as provided in
this Agreement, with respect to periods prior to the date of such termination or
removal).
Section 8.08 Successor Trustee. (a) Any successor trustee shall
execute, acknowledge and deliver to the Depositor, the Master Servicer and to
the predecessor Trustee, as the case may be, instruments accepting their
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor trustee, 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 herein, provided that such
successor trustee shall satisfy the requirements contained in Section 8.06. The
predecessor Trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder, and the Depositor and
the predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for more fully and certainly vesting
and confirming in the successor trustee all such rights, powers, duties and
obligations. No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, the Depositor shall mail notice of the succession of such
Trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register. If the Depositor fails to mail such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Depositor.
(b) Any successor trustee appointed pursuant to this Agreement shall
satisfy the eligibility requirements set forth in Section 8.06 hereof.
Section 8.09 Merger or Consolidation of Trustee. Any corporation
into which the Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation 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.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
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 the same may at the time be located, the
Depositor 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 (at the expense of the Trustee) 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 Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. Except as required by applicable law, the appointment of a
co-Trustee or separate Trustee shall not relieve the Trustee of its
responsibilities, obligations and liabilities hereunder. 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.
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 (it being understood that such separate Trustee or co-Trustee is not
authorized to act separately without the Trustee joining in such act), 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 the
Master 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 solely at the direction of the Trustee.
No Trustee under this Agreement shall be personally liable by reason
of any act or omission of any other Trustee under this Agreement. The Depositor
and the Trustee acting jointly may at any time accept the resignation of or
remove any separate Trustee or co-Trustee, or if the separate Trustee or
co-Trustee is an employee of the Trustee, the Trustee acting alone may accept
the resignation of or remove any separate Trustee or co-Trustee.
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. Every such instrument shall be filed with the Trustee.
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. In no
event shall any such separate Trustee or co-Trustee be entitled to any provision
relating to the conduct of, affecting the liability of or affording protection
to such separate Trustee or co-Trustee that imposes a standard of conduct less
stringent than that imposed by the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
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.
ARTICLE IX
TERMINATION
Section 9.01 Termination. (a) The respective obligations and
responsibilities of the Master Servicer, the Special Servicer, the Depositor and
the Trustee created hereby with respect to the Certificates (other than the
obligations of the Trustee to make certain payments and to send certain notices
to Certificateholders as hereinafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders, the Serviced Companion Loan
Noteholders of all amounts held by or on behalf of the Trustee and the Master
Servicer, as the case may be, required hereunder to be so paid on the
Distribution Date following the earlier to occur of (i) the purchase of the
Mortgage Loans and all other property held by the Trust Fund in accordance with
Section 9.01(c); (ii) the exchange by the Sole Certificateholder of its
Certificates for the Mortgage Loans in accordance with Section 9.01(g) and (iii)
the later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and disposition
pursuant to this Agreement of the last asset held by the Trust Fund; provided,
however, that in no event shall the trust created hereby continue beyond the
expiration of twenty-one years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to
the United Kingdom, living on the date hereof.
For purposes of this Section 9.01, the Sole Certificateholder shall
have the first option to terminate the Trust Fund, pursuant to subsection (g),
and then the Certificateholder owning a majority of the Percentage Interests in
the Controlling Class, the Master Servicer and the Special Servicer, in that
order, pursuant to subsection (c).
(b) The Trust Fund, the Upper-Tier REMIC and the Lower-Tier REMIC
shall be terminated and the assets of the Trust Fund shall be sold or otherwise
disposed of in connection therewith, only pursuant to a "plan of complete
liquidation" within the meaning of Code Section 860F(a)(4)(A) providing for the
actions contemplated by the provisions hereof and pursuant to which the
applicable Notice of Termination is given, and requiring that the Trust Fund,
the Upper-Tier REMIC and the Lower-Tier REMIC shall terminate on a Distribution
Date occurring not more than 90 days following the date of adoption of the plan
of complete liquidation. For purposes of this Section 9.01(b), the Notice of
Termination given pursuant to Section 9.01(c) shall constitute the adoption of
the plan of complete liquidation as of the date such notice is given, which date
shall be specified by the Master Servicer in the final federal income tax
returns of the Upper-Tier REMIC and the Lower-Tier REMIC. Notwithstanding the
termination of the Lower-Tier REMIC or the Upper-Tier REMIC or the Trust Fund,
the Trustee shall be responsible for filing the final Tax Returns for each such
REMIC and for the Grantor Trust for the period ending with such termination, and
shall retain books and records with respect to such REMICs and the Grantor Trust
for the same period of retention for which it maintains its own tax returns or
such other reasonable period. The Trustee shall sign all Tax Returns and other
reports required by this Section.
(c) The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder exercises
such option, the General Master Servicer and if the General Master Servicer does
not exercise such option, Master Servicer No. 2 and if Master Servicer No. 2
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Master Servicer
any time on or after the Early Termination Notice Date specifying the
Anticipated Termination Date, by purchasing on such date all, but not less than
all, of the Mortgage Loans then included in the Trust Fund, and the Trust's
interest in all property acquired in respect of any Mortgage Loan, at a purchase
price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage Loan
included in the Trust Fund as of the last day of the month preceding
such Anticipated Termination Date (less any P&I Advances previously
made on account of principal);
(B) the fair market value of all other property included in
the Trust Fund as of the last day of the month preceding such
Anticipated Termination Date, as determined by an Independent
appraiser acceptable to the Master Servicer as of a date not more
than 30 days prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of each
Mortgage Loan (including any Mortgage Loan as to which title to the
related Mortgaged Property has been acquired) at the Mortgage Rate
to the last day of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on account of interest);
and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid Servicing
Compensation, Special Servicing Compensation, Trustee Fees and Trust
Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all
other property acquired in respect of any Mortgage Loan in the Trust Fund,
on the last day of the month preceding such Anticipated Termination Date,
as determined by an Independent appraiser acceptable to the Master
Servicer as of a date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
In the event that the Certificateholder owning a majority of the
Percentage Interests in the Controlling Class, the Master Servicer or the
Special Servicer purchases all of the Mortgage Loans and all property acquired
in respect of any Mortgage Loan remaining in the Trust Fund in accordance with
this Section 9.01(c), the Certificateholder owning a majority of the Percentage
Interests in the Controlling Class, the Master Servicer or the Special Servicer,
as applicable, shall deposit in the Lower-Tier Distribution Account not later
than the Servicer Remittance Date relating to the Anticipated Termination 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 Collection Account ). In addition, the Master Servicer shall transfer to
the Trustee for deposit in the Lower-Tier Distribution Account all amounts
required to be transferred thereto on the Servicer Remittance Date from its
Collection Account, together with any other amounts on deposit in the Collection
Account that would otherwise be held for future distribution. Upon confirmation
that such final deposits have been made, the Trustee shall, release or cause to
be released to the Certificateholder owning a majority of the Percentage
Interests in the Controlling Class, the Master Servicer or the Special Servicer,
as applicable, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
such purchasing party as shall be necessary to effectuate transfer of the
Mortgage Loans and all property acquired in respect of any Mortgage Loan
remaining in the Trust Fund, and the Trust Fund shall be liquidated in
accordance with this Article IX.
As a condition to the purchase of the assets of the Trust Fund
pursuant to this Section 9.01(c), the purchaser shall deliver to the Trustee an
Opinion of Counsel, which shall be at the expense of such purchaser, stating
that such termination will be a "qualified liquidation" under Section
860F(a)(4)(A) of the Code. All costs and expenses incurred by any and all
parties to this Agreement or by the Trust Fund in connection with the purchase
of the Mortgage Loans and other assets of the Trust Fund pursuant to this
Section 9.01(c) shall be borne by the party exercising its purchase rights
hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to this subsection (c).
(d) If the Trust Fund has not been previously terminated pursuant to
subsection (c) of this Section 9.01, the Trustee shall determine as soon as
practicable the Distribution Date on which the Trustee reasonably anticipates,
based on information with respect to the Mortgage Loans previously provided to
it, that the final distribution will be made (i) to the Holders of outstanding
Regular Certificates, and to the Trustee in respect of outstanding Lower-Tier
Regular Interests, notwithstanding that such distribution may be insufficient to
distribute in full the Certificate Balance or Lower-Tier Principal Balance of
each Class of Certificates or Lower-Tier Regular Interest, respectively,
together with amounts required to be distributed on such Distribution Date
pursuant to Section 4.01(a), (b), or (c) and (ii) if no such Classes of
Certificates are then outstanding, to the Holders of the Class LR Certificates
of any amount remaining in the Collection Accounts, the Excess Liquidation
Proceeds Account or the Lower-Tier Distribution Account, and to the Holders of
the Class R Certificates of any amount remaining in the Upper-Tier Distribution
Account.
(e) Notice of any termination of the Trust Fund pursuant to this
Section 9.01 shall be mailed by the Trustee to affected Certificateholders with
a copy to the Master Servicer and each Rating Agency at their addresses shown in
the Certificate Registrar as soon as practicable after the Trustee shall have
received, given or been deemed to have received a Notice of Termination but in
any event not more than 30 days, and not less than ten days, prior to the
Anticipated Termination Date. The notice mailed by the Trustee to affected
Certificateholders shall:
(i) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of Certificates of the
Classes specified therein;
(ii) specify the amount of any such final distribution, if known;
and
(iii) state that the final distribution to Certificateholders will
be made only upon presentation and surrender of Certificates at the office
of the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for any
reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(f) Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date has been given pursuant
to this Section 9.01 shall not have been surrendered for cancellation within six
months after the time specified in such notice, the Trustee shall mail a second
notice to the remaining Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Residual Certificateholders. No interest shall accrue or
be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01. Any amounts remaining in the
Grantor Trust Distribution Account representing Excess Interest shall be
distributed to the Class T Certificates.
(g) Following the date on which the aggregate Certificate Balance of
the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class
A-5, Class A-1A, Class A-1S, Class A-M, Class A-J, Class B, Class C, Class D,
Class E and Class F Certificates is reduced to zero, the Sole Certificateholder
shall have the right to exchange all of its Certificates (other than the Class
T, Class R and Class LR Certificates), including the Class XS and Class XP
Certificates, for all of the Mortgage Loans and each REO Property remaining in
the Trust Fund as contemplated by clause (ii) of Section 9.01(a) by giving
written notice to all the parties hereto no later than 60 days prior to the
anticipated date of exchange; provided, that such Certificateholder pay the
Trustee an amount equal to from and including one Business Day prior to such
final Distribution Date to but excluding such final Distribution Date of
interest calculated at the Prime Rate on the aggregate Certificate Balance of
the Principal Balance Certificates as of the first day of the current calendar
month. In the event that the Sole Certificateholder elects to exchange all of
its Certificates (other than the Class T, Class R and Class LR Certificates),
including the Class XS and Class XP Certificates, for all of the Mortgage Loans
and each REO Property remaining in the Trust Fund 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 Collection Account an amount in immediately available funds equal
to all amounts due and owing to the Depositor, the Master Servicer, the Special
Servicer and the Trustee hereunder through the date of the liquidation of the
Trust Fund that may be withdrawn from the Collection Account , or an escrow
account acceptable to the respective parties hereto, pursuant to Section 3.06(b)
or that may be withdrawn from the Distribution Accounts pursuant to Section
3.06(a), but only to the extent that such amounts are not already on deposit in
the Collection Account . In addition, the Master Servicer shall transfer all
amounts required to be transferred to the Trustee for deposit in the Lower-Tier
Distribution Account on such Servicer Remittance Date from its Collection
Account pursuant to Section 3.05. Upon confirmation that such final deposits
have been made and following the surrender of all its Certificates (other than
the Class T, Class R and Class LR Certificates) on the final Distribution Date,
the Trustee shall, upon receipt of a Request for Release from the 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 this Article IX. The remaining
Mortgage Loans and REO Properties are deemed distributed to the Sole
Certificateholder in liquidation of the Trust Fund pursuant to this Article IX.
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
T, Class R and Class LR Certificates), plus accrued, unpaid interest with
respect thereto, and the Trustee shall credit such amounts against amounts
distributable in respect of the Lower-Tier Regular Interests and such
Certificates.
ARTICLE X
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 10.01 Intent of the Parties; Reasonableness.
(a) Except with respect to Section 10.08, Section 10.11, Section
10.13, Section 10.14, Section 10.15, Section 10.16 and Section 10.17 the parties
hereto acknowledge and agree that the purpose of Article X of this Agreement is
to facilitate compliance by the Depositor with the provisions of Regulation AB
and related rules and regulations of the Commission. Neither the Depositor nor
the Trustee shall exercise its rights to request delivery of information or
other performance under these provisions other than in reasonable 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. The parties to this Agreement 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 reasonable requests made by the Depositor or the Trustee in
reasonable good faith for delivery of information under these provisions on the
basis of such evolving interpretations of Regulation AB. In connection with the
Deutsche Mortgage & Asset Receiving Corporation, Series CD 2006-CD3 transaction
and any securitization transaction subject to Regulation AB involving any
Serviced Companion Loans, subject to the preceding sentence, each of the parties
to this agreement shall cooperate fully with the Depositor, the Trustee and any
other depositor or trustee of any securitization involving the Serviced
Companion Loans, as applicable, to deliver or make available to the Depositor or
the Trustee and any other depositor or trustee of any securitization involving
the Serviced Companion Loans, as applicable (including any of their assignees or
designees), any and all information in its possession and necessary in the
reasonable good faith determination of the Depositor or the Trustee and any
other depositor or trustee of any securitization involving the Serviced
Companion Loans, as applicable, to permit the Depositor (or any other depositor
of any securitization involving any Serviced Companion Loan) to comply with the
provisions of Regulation AB, together with such disclosure relating to either
Master Servicer, the Special Servicer and the Trustee, as applicable, and any
Servicing Function Participant, or the Servicing of the Mortgage Loans,
reasonably believed by the Depositor or the Trustee and any other depositor or
trustee of any securitization involving the Serviced Companion Loans, 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 10.01, but in any event, shall,
upon reasonable advance written request, provide information in sufficient time
to allow the Depositor or the Trustee, as applicable, to satisfy any related
filing requirements.
(b) In connection with the requirements contained in this Article X
that provide for the delivery of information and other items to, and the
cooperation with, the depositor and trustee of any securitization subject to
Regulation AB involving the Serviced Companion Loans, no party hereunder shall
be obligated to provide any such items to or cooperate with such depositor or
trustee until the depositor of such securitization has provided each party
hereto with a written notice that such other securitization is subject to
Regulation AB and that the subject securitization trust is subject to Exchange
Act reporting. Any reasonable cost and expense of the Master Servicer, Special
Servicer and the Trustee in cooperating with such depositor or trustee of such
other securitization trust shall be the responsibility of such other
securitization trust. The parties hereto shall have the right to negotiate in
good faith with the depositor of such securitization as to whether Regulation AB
requires the delivery of the items identified in this Article X to the depositor
and trustee of the other securitization; provided that any such depositor's
reasonable judgment shall control. The parties hereunder shall also have the
right to require that such depositor provide them with the contact details of
the depositor, the trustee and any other parties to the securitization agreement
memorializing such securitization trust.
Section 10.02 [Reserved]
Section 10.03 Information to be Provided by the Master Servicer and
the Special Servicer. (a) For so long as the Trust is subject to the reporting
requirements of the Exchange Act and for so long as any other securitization
trust relating to any securitized Serviced Companion Loan is subject to the
reporting requirements of the Exchange Act (in addition to any requirements
contained in Section 10.09) in connection with the succession to a Master
Servicer and Special Servicer or any Servicing Function Participant (if such
Servicing Function Participant is a servicer as contemplated by Item 1108(a)(2)
of Regulation AB) as servicer or Sub-Servicer under this Agreement or any
Companion Loan Noteholder Securitization Agreement by any Person (i) into which
a Master Servicer and Special Servicer or such Servicing Function Participant
may be merged or consolidated, (ii) which may be appointed as a sub-servicer by
a Master Servicer or Special Servicer, or (iii) that is appointed as a successor
Master Servicer or successor Special Servicer pursuant Section 7.02, the Master
Servicer or the Special Servicer (with respect to the foregoing clauses (i) and
(ii)) or the successor Master Servicer or the successor Special Servicer (with
respect to the foregoing clause (iii)) shall provide to the Depositor and to any
other depositor related to any other securitization trust relating to any
securitized Serviced Companion Loan, at least 5 calendar days (other than a
succession or appointment pursuant to Section 7.01(b) for which notice shall be
delivered as soon as reasonably practicable) prior to the effective date of such
succession or appointment as long as such disclosure prior to such effective
date would not be violative of any applicable law or confidentiality agreement,
otherwise immediately following such effective date, but in no event later than
the time required pursuant to Section 10.09, (x) written notice to the Trustee
and the Depositor of such succession or appointment and (y) in writing and in
form and substance reasonably satisfactory to the Trustee and the Depositor (or
any other trustee and depositor of any securitization involving any Serviced
Companion Loan), all information relating to such successor reasonably requested
by the Depositor (or such other depositor) so that it may comply with its
reporting obligation under Item 6.02 of Form 8-K with respect to any Class of
Certificates or Companion Loan Securities.
Section 10.04 Information to be Provided by the Trustee. (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 10.06), in connection with
the succession to the Trustee as Trustee or co-Trustee under this Agreement by
any Person (i) into which the Trustee may be merged or consolidated, (ii) which
may be appointed as a co-Trustee or separate Trustee pursuant to Section 8.10,
or (iii) that is appointed as a successor Trustee pursuant Section 8.08, the
Trustee (with respect to the foregoing clauses (i) and (ii)) or the successor
Trustee (with respect to the foregoing clause (iii)) shall provide to the
Depositor, at least 5 calendar days prior to the effective date of such
succession or appointment as long as such disclosure prior to such effective
date would not be violative of any applicable law or confidentiality agreement,
otherwise immediately following such effective date, but in no event later than
the time required pursuant to Section 10.09, (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 reasonably requested
by the Depositor so that it may comply with its reporting obligation under Item
6.02 of Form 8-K with respect to any Class of Certificates.
Section 10.05 Filing Obligations. The Master Servicer, the Special
Servicer and the Trustee shall and the Master Servicer, the Special Servicer and
the Trustee, as applicable, shall use commercially reasonable efforts to cause
each Servicing Function Participant (other than (x) any party to this Agreement
or (y) a Loan Seller Sub-Servicer) with which it has entered into a servicing
relationship with respect to the Mortgage Loans, to reasonably cooperate with
the Trustee and the Depositor (and any other trustee or depositor related to any
other securitization trust relating to any securitized Serviced Companion Loan)
in connection with the Trustee's and Depositor's (or such other trustee's and
depositor's) good faith efforts to satisfy the Trust's (or such other
securitization trust's) reporting requirements under the Exchange Act.
Section 10.06 Form 10-D Filings. Within 15 days after each
Distribution Date (subject to permitted extensions under the Exchange Act) (the
"10-D Filing Deadline"), the Trustee shall prepare and file on behalf of the
Trust any Form 10-D required by the Exchange Act and the rules and regulations
of the Commission thereunder, in form and substance as required by the Exchange
Act and such rules and regulations. A duly authorized representative of the
Depositor shall sign each Form 10-D filed on behalf of the Trust. The Trustee
shall file each Form 10-D with a copy of the related Monthly Certificateholder's
Report attached thereto. Any disclosure in addition to the Monthly
Certificateholder's Report that is required to be included on Form 10-D
("Additional Form 10-D Disclosure") shall, pursuant to the paragraph immediately
below, be reported by the parties set forth on Schedule III and directed to the
Depositor and the Trustee for approval by the Depositor. The Trustee will have
no duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-D Disclosure (other than such Additional Form 10-D Disclosure
which is to be reported by it as set forth on Schedule III) absent such
reporting, direction and approval.
For so long as the Trust is subject to the reporting requirements of
the Exchange Act and for so long as any other securitization trust relating to
any securitized Serviced Companion Loan is subject to the reporting requirements
of the Exchange Act, within 5 calendar days after the related Distribution Date,
(i) the parties listed on Schedule III hereto shall be required to provide to
the Trustee and the Depositor (and to any other trustee or depositor related to
any other securitization trust relating to any securitized Serviced Companion
Loan), to the extent a Servicing Officer or Responsible Officer, as the case may
be, thereof has actual knowledge (other than Item 1117 of Regulation AB as to
such party which shall be reported if actually known by any Servicing Officer or
Responsible Officer, as the case may be or any lawyer in the in-house legal
department of such party), 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 Trustee and the Depositor (or such other trustee and depositor) and such
party, the form and substance of the Additional Form 10-D Disclosure described
on Schedule III applicable to such party, (ii) include with such Additional Form
10-D Disclosure, an Additional Disclosure Notification in the form attached
hereto as Exhibit V and (iii) the Trustee shall, at any time prior to filing the
related Form 10-D, provide prompt notice to the Depositor to the extent that the
Trustee is notified of an event reportable on Form 10-D for which it has not
received the necessary Additional Form 10-D Disclosure from the applicable
party. No later than the 7th calendar day after the Distribution Date, the
Depositor will 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; provided
that if the Trustee does not receive a response from the Depositor by such time
the Depositor will be deemed to have consented to the inclusion of such
Additional Form 10-D Disclosure. Other than to the extent provided for in clause
(iii) above, the Trustee has no duty under this Agreement to monitor or enforce
the performance by the parties listed on Schedule III 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 any expenses incurred by the Trustee in connection
with including any Additional Form 10-D Disclosure on Form 10-D pursuant to this
paragraph.
After preparing the Form 10-D, the Trustee shall forward
electronically a copy of the Form 10-D to the Depositor for review and approval;
provided that the Trustee shall use its reasonable best efforts to provide such
copy to the Depositor by the 8th day after the Distribution Date. No later than
the end of business on the 4th Business Day prior to the filing date, the
Depositor shall notify the Trustee in writing (which may be furnished
electronically) of any changes to or approval of such Form 10-D, and no later
than the 2nd Business Day prior to the filing, a duly authorized representative
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 Trustee. The Trustee shall file such Form 10-D, upon
signature thereof as provided in Section 10.16, not later than (i) 5:30 pm (New
York City time) on the 15th calendar day after the related Distribution Date or
(ii) such other time as the Depositor and the Trustee mutually agree is
permitted by the Commission for the filing such Form 10-D. If a Form 10-D cannot
be filed on time or if a previously filed Form 10-D needs to be amended, the
Trustee will follow the procedures set forth in Section 10.10(b). After filing
with the Commission, the Trustee shall, pursuant to Section 4.02(c), make
available on its internet website a final executed copy of each Form 10-D. The
parties to this Agreement acknowledge that the performance by the Trustee of its
duties under this Section 10.06 related to the timely preparation and filing of
Form 10-D is contingent upon such parties observing all applicable deadlines in
the performance of their duties under this Section 10.06. The Trustee shall have
no liability for any loss, expense, damage, claim arising out of or with respect
to any failure to properly prepare or file such Form 10-D where such failure
results from the Trustee'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 10-D, not resulting from its own negligence, bad faith or
willful misconduct.
Section 10.07 Form 10-K Filings. Within 90 days after the end of
each fiscal year of the Trust or such earlier date as may be required by the
Exchange Act (the "10-K Filing Deadline") (it being understood that the fiscal
year for the Trust ends on December 31st of each year), commencing in March
2007, the Trustee 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 Trustee within the applicable time frames set forth in this Agreement:
(i) an annual compliance statement for each applicable Certifying
Servicer, as described under Section 10.11;
(ii) (A) the annual reports on assessment of compliance with
servicing criteria for each applicable Reporting Servicer, as described
under Section 10.12, and (B) if any Reporting Servicer's report on
assessment of compliance with servicing criteria described under Section
10.12 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any Reporting Servicer's
report on assessment of compliance with servicing criteria described under
Section 10.12 is not included as an exhibit to such Form 10-K, disclosure
that such report is not included and an explanation as to why such report
is not included;
(iii) (A) the registered public accounting firm attestation report
for each Reporting Servicer, as described under Section 10.13, and (B) if
any registered public accounting firm attestation report described under
Section 10.13 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 as to why such report is not included; and
(iv) a Xxxxxxxx-Xxxxx Certification as described in Section 10.8.
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 paragraph immediately below, be reported by the parties
set forth on Schedule IV hereto to the Depositor and the Trustee (and to any
other depositor or other trustee related to any other securitization trust
relating to any securitized Serviced Companion Loan) and approved by the
Depositor (and such other depositor), and the Trustee (or such other trustee)
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 on Schedule IV) absent
such reporting and approval.
Not later than the end of each fiscal year for which the Trust (or
any other securitization trust relating to a Serviced Companion Loan) is
required to file a Form 10-K, the Master Servicer, the Special Servicer and the
Trustee shall provide the other parties to this Agreement (or the other parties
to any Companion Loan Securitization Agreement) with written notice of the name
and address of each Servicing Function Participant retained by such party.
For so long as the Trust (or any other securitization trust relating
to a Serviced Companion Loan) is subject to the reporting requirements of the
Exchange Act, by March 15th, commencing in March 2007 (i) the parties listed on
Schedule IV hereto shall be required to provide to the Trustee and the Depositor
(and to any other depositor or other trustee related to any other securitization
trust relating to any securitized Serviced Companion Loan), to the extent a
Servicing Officer or a Responsible Officer, as the case may be, thereof has
actual knowledge (other than with respect to Items 1117 and 1119(a) of
Regulation AB as to such party which shall be reported if actually known by any
Servicing Officer or any lawyer in the in-house legal department of such party),
in XXXXX-compatible format (to the extent available to such party in such
format), or in such other form as otherwise agreed upon by the Trustee and the
Depositor (or such other trustee and depositor) and such party, the form and
substance of the Additional Form 10-K Disclosure described on Schedule IV
applicable to such party, (ii) include with such Additional Form 10-K
Disclosure, an Additional Disclosure Notification in the form attached hereto as
Exhibit V and (iii) the Trustee shall, at any time prior to filing the related
Form 10-K, provide prompt notice to the Depositor to the extent that the Trustee
is notified of an event reportable on Form 10-K for which it has not received
the necessary Additional Form 10-K Disclosure from the applicable party. No
later than March 15th, 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; provided that if the Trustee does not receive a
response from the Depositor by such time the Depositor will be deemed to have
consented to the inclusion of such Additional Form 10-K Disclosure. Other than
to the extent provided for in clause (iii) above, the Trustee has no duty under
this Agreement to monitor or enforce the performance by the parties listed on
Schedule IV 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 any expenses
incurred by the Trustee in connection with including any Additional Form 10-K
Disclosure on Form 10-K pursuant to this paragraph.
After preparing the Form 10-K, on or prior to the 6th Business Day
prior to the 10-K Filing Deadline, the Trustee shall forward electronically a
copy of the Form 10-K to the Depositor for review and approval. Within three
Business Days after receipt of such copy, but no later than March 24th, the
Depositor shall notify the Trustee in writing (which may be furnished
electronically) of any changes to or approved of such Form 10-K. No later than
5:00 p.m. New York City time on the 4th Business Day prior to the 10-K Filing
Deadline, a senior officer in charge of securitization of 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
Trustee. The Trustee shall file such Form 10-K, upon signature thereof as
provided in Section 10.16, not later than (i) 5:30 pm (New York City time) on
the 10-K Filing Deadline or (ii) such other time as the Depositor and the
Trustee mutually agree is permitted by the Commission for the filing such Form
10-K, of each year in which a report on Form 10-K is required to be filed by the
Trust. If a Form 10-K cannot be filed on time or if a previously filed Form 10-K
needs to be amended, the Trustee will follow the procedures set forth in Section
10.10(b). After filing with the Commission, the Trustee shall, pursuant to
Section 4.02(c), make available on its internet website a final executed copy of
each Form 10-K. The parties to this Agreement acknowledge that the performance
by the Trustee of its duties under this Section 10.07 related to the timely
preparation and filing of Form 10-K is contingent upon such parties (and any
Additional Servicer or Servicing Function Participant) observing all applicable
deadlines in the performance of their duties under this Article X. The Trustee
shall have no liability with respect to any failure to properly prepare or file
such Form 10-K resulting from the Trustee's inability or failure to receive from
any other party any information 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.
Section 10.08 Xxxxxxxx-Xxxxx Certification. Each Form 10-K shall
include a certification (the "Xxxxxxxx-Xxxxx Certification"), as set forth in
Exhibit Y attached hereto, required to be included therewith pursuant to the
Xxxxxxxx-Xxxxx Act. Each Reporting Servicer shall, and each Reporting Servicer
shall use commercially reasonable efforts to cause each Servicing Function
Participant (other than (x) any party to this Agreement or (y) a Loan Seller
Sub-Servicer) with which it has entered into a servicing relationship with
respect to the Mortgage Loans, to provide to the Person who signs the
Xxxxxxxx-Xxxxx Certification for the Trust or any other securitization trust
that includes a Serviced Companion Loan (the "Certifying Person"), by March 15th
(with no grace period) of each year in which the Trust is subject to the
reporting requirements of the Exchange Act and of each year in which any other
securitization trust relating to any Serviced Companion Loan is subject to the
reporting requirements of the Exchange Act, a certification (each, a
"Performance Certification"), in the form attached hereto as Exhibit M, O, P or
Q, as applicable, upon 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. The senior officer in charge of securitization of the
Depositor shall serve as the Certifying Person on behalf of the Trust. The
Certifying Person at the Depositor can be contacted at Deutsche Mortgage & Asset
Receiving Corporation at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx Xxxx, with a copy to Xxx Xxxxxx, Esq. If any Reporting Servicer is
terminated or resigns pursuant to the terms of this Agreement, or any applicable
sub-servicing agreement, as the case may be, such Reporting Servicer shall
provide a Performance Certification to the Certifying Person pursuant to this
Section 10.08 with respect to the period of time it was subject to this
Agreement or the applicable sub-servicing agreement, as the case may be.
Each Performance Certification shall include a reasonable reliance
provision enabling the Certification Parties to rely upon each (i) annual
compliance statement provided pursuant to Section 10.11, (ii) annual report on
assessment of compliance with servicing criteria provided pursuant to Section
10.12 and (iii) registered public accounting firm attestation report provided
pursuant to Section 10.13.
Section 10.09 Form 8-K Filings. Within four (4) Business Days after
the occurrence of an event requiring disclosure (the "8-K Filing Deadline")
under Form 8-K (each a "Reportable Event"), to the extent it receives the Form
8-K Disclosure Information described below, the Trustee shall prepare and, at
the direction of the Depositor, 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 ("Form 8-K Disclosure Information") shall, pursuant to the
paragraph immediately below, be reported by the parties set forth on Schedule V
to which such Reportable Event relates and such Form 8-K Disclosure Information
shall be delivered to the Depositor and the Trustee (and to any other depositor
and other trustee related to any other securitization trust relating to any
securitized Serviced Companion Loan) and approved by the Depositor. The Trustee
will have no duty or liability for any failure hereunder to determine or prepare
any Form 8-K Disclosure Information (other than such Form 8-K Disclosure
Information which is to be reported by it as set forth on Schedule V) absent
such reporting and approval.
For so long as the Trust (or any other securitization trust relating
to a Serviced Companion Loan) is subject to the reporting requirements of the
Exchange Act, the parties listed on Schedule V hereto shall, to the extent a
Servicing Officer or a Responsible Officer, as the case may be, thereof has
actual knowledge (or any officer thereof with respect to Items 1117 and 1119 or
Regulation AB as to such party), use their reasonable efforts to provide to the
Depositor and the Trustee (or any other depositor and trustee relating to a
Serviced Companion Loan) within 1 Business Day after the occurrence of the
Reportable Event, but shall provide in no event later than noon (New York City
time) on the 2nd Business Day after the occurrence of the Reportable Event, the
form and substance of the Form 8-K Disclosure Information described on Schedule
V as applicable to such party, 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 Trustee and the Depositor (and such other trustee and
depositor) and such party and accompanied by an Additional Disclosure
Notification in the form attached hereto as Exhibit V. 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 by the end of
business on the 2nd Business Day after the Reportable Event; provided that if
the Trustee does not receive a response from the Depositor by such time as
required under this Agreement the Depositor will be deemed to have consented to
such Form 8-K Disclosure Information. The Trustee has no duty under this
Agreement to monitor or enforce the performance by the parties listed on
Schedule V of their duties under this paragraph or proactively solicit or
procure from such parties any Form 8-K Disclosure Information; provided that to
the extent that the Trustee is notified of such Reportable Event and it does not
receive the necessary Form 8-K Disclosure Information, it shall notify the
Depositor that it has not received such information and, provided, further, that
the limitation on liability provided by this sentence shall not be applicable if
the Reportable Event relates to the Trustee or any party that the Trustee has
engaged to perform its obligations under this Agreement. The Depositor will be
responsible for any reasonable fees assessed and any expenses incurred by the
Trustee 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 Trustee shall, no later than the
end of the Business Day (New York City time) on the 3rd Business Day after the
Reportable Event, forward electronically a copy of the Form 8-K to the Depositor
for review and approval and the Depositor shall promptly notify the Trustee in
writing (which may be furnished electronically) of any changes to the Form 8-K.
No later than noon on the 4th Business Day (New York City time) after the
Reportable Event, a duly authorized representative 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 Trustee. The
Trustee shall file such Form 8-K, upon signature thereof as provided in Section
10.16, not later than (i) 5:30 pm (New York City time) on the 4th Business Day
following the reportable event or (ii) such other time as the Depositor and the
Trustee mutually agree is permitted by the Commission for the filing such Form
8-K. If a Form 8-K cannot be filed on time or if a previously filed Form 8-K
needs to be amended, the Trustee will follow the procedures set forth in Section
10.10(b). After filing with the Commission, the Trustee will, pursuant to
Section 4.02(c), make available on its internet website a final executed copy of
each Form 8-K. The parties to this Agreement acknowledge that the performance by
the Trustee of its duties under this Section 10.9 related to the timely
preparation and filing of Form 8-K is contingent upon such parties observing all
applicable deadlines in the performance of their duties under this Section 10.9.
The Trustee 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 Trustee's
inability or failure to receive approved Form 8-K Disclosure Information within
the applicable timeframes set forth in this Section 10.09 and not resulting from
the Trustee's own negligence, bad faith or willful misconduct (provided that to
the extent that the Trustee is notified of such Reportable Event and it does not
receive the necessary Form 8-K Disclosure Information, it will notify the
Depositor that it has not received such information and further provided that
the limitation on liability provided by this sentence shall not be applicable if
the Reportable Event relates to the Trustee or any party that the Trustee has
engaged to perform its obligations under this Agreement).
Section 10.10 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act Reports. (a)..On or before January 30 of the first
year in which the Trustee is able to do so under applicable law, the Trustee
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. With respect to any reporting period occurring after the filing of Form 15,
the obligations of the parties to this Agreement under Sections 10.01, 10.03,
10.06, 10.07, 10.08 and 10.09 shall be suspended.
(b) If the Trustee is unable to timely file with the Commission all
or any required portion of any Form 8-K, Form 10-D or Form 10-K required to be
filed by this Agreement because required disclosure information either was not
delivered to it or was delivered to it after the delivery deadlines set forth in
this Agreement or for any other reason, the Trustee shall promptly notify (which
notice (which may be sent by fax or by email notwithstanding the provisions of
Section 11.04) shall include the 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 delivery. In the case of Form 10-D
and Form 10-K, each such Reporting Servicer shall cooperate with the Depositor
and the Trustee to prepare and file a Form 12b-25 and a Form 10-D/A and Form
10-K/A as applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case
of Form 8-K, the Trustee shall, 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 Form 10-D that is required to be filed on
behalf of the Trust. In the event that any previously filed Form 8-K, Form 10-D
or Form 10-K needs to be amended, the Trustee shall notify the Depositor and
such other parties as needed and such parties shall cooperate to prepare any
necessary Form 8-K/A, Form 10-D/A or Form 10-K/A. Any Form 15, Form 12b-25 or
any amendment to Form 8-K, Form 10-D or Form 10-K shall be signed by the
Depositor. The parties to this agreement acknowledge that the performance by the
Trustee of its duties under this Section 10.10 related to the timely preparation
and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K, 10-D or 10-K
is contingent upon the Master Servicer, the Special Servicer and the Depositor
performing their duties under this Section. The Trustee shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare and/or timely file any such Form 15, Form 12b-25 or
any amendments to Forms 8-K, Form 10-D or Form 10-K, where such failure results
from the Trustee'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 Form 8-K, Form 10-D or
Form 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
Section 10.11 Annual Compliance Statements. The Master Servicer, the
Special Servicer, the Trustee and each Servicing Function Participant (if such
Servicing Function Participant is a servicer contemplated by Item 1108(a)(2)(i),
(ii) or (iii) of Regulation AB) (each a "Certifying Servicer") shall and the
Master Servicer, the Special Servicer and the Trustee shall use commercially
reasonable efforts to cause each Additional Servicer and each Servicing Function
Participant (if such Servicing Function Participant is a servicer contemplated
by Item 1108(a)(2)(i), (ii) or (iii) of Regulation AB) (other than (x) any party
to this Agreement or (y) a Loan Seller Sub-Servicer) with which it has entered
into a servicing relationship with respect to the Mortgage Loans, to deliver to
the Depositor and the Trustee (and other than with respect to the Trustee's
obligation to deliver any such reports, to any depositor and trustee for any
other securitization trust relating to a Serviced Companion Loan) on or before
March 15th (with no grace period) with respect to the Master Servicer, the
Special Servicer, any Additional Servicer or the Trustee, 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 in
the case of an Additional Servicer, has been made under such officer's
supervision and (B) that, 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 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. Promptly after receipt of each such Officer's
Certificate, the Depositor (and such other depositor) shall have the right to
review such Officer's Certificate and, if applicable, consult with each
Certifying Servicer, as applicable, as to the nature of any failures by such
Certifying Servicer, in the fulfillment of any of the Certifying Servicer's
obligations hereunder or under the applicable sub-servicing agreement. None of
the Certifying Servicers or any Additional Servicer or any Servicing Function
Participant shall be required to deliver, or to endeavor to cause the delivery
of, any such Officer's Certificate 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 calendar year.
Section 10.12 Annual Reports on Assessment of Compliance with
Servicing Criteria. By March 15th (with no grace period) of each year,
commencing in March 2007, the Master Servicer, the Special Servicer (regardless
of whether the Special Servicer has commenced special servicing of any Mortgage
Loan), the Trustee, and each Servicing Function Participant, each at its own
expense, shall furnish, (and each of the preceding parties, as applicable, shall
use commercially reasonable efforts to cause, by March 15th, each Servicing
Function Participant (other than (x) a party to this Agreement or (y) a Loan
Seller Sub-Servicer) with which it has entered into a servicing relationship
with respect to the Mortgage Loans to the Trustee and the Depositor (and other
than with respect to the Trustee's obligation to deliver any such reports, to
any depositor and trustee for any other securitization trust relating to a
Serviced Companion Loan) a report on an assessment of compliance with the
Relevant Servicing Criteria with respect to commercial mortgage backed
securities transactions taken as a whole involving such party that contains (A)
a statement by such Reporting Servicer of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such
Reporting Servicer used the Servicing Criteria to assess compliance with the
Relevant Servicing Criteria, (C) such Reporting Servicer's assessment of
compliance with the Relevant 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 10.07, including, if there has been any material instance of
noncompliance with the Relevant 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 Relevant Servicing Criteria as of
and for such period.
No later than the end of each fiscal year for the Trust (and any
other securitization trust relating to a Serviced Companion Loan) for which a
Form 10-K is required to be filed, the Master Servicer, the Special Servicer and
Trustee shall each forward to the Trustee and the Depositor (and other than with
respect to the Trustee's obligation to deliver any such reports, to any
depositor and trustee for any other securitization trust relating to a Serviced
Companion Loan) the name and contact information of each Servicing Function
Participant engaged by it and what Relevant Servicing Criteria will be addressed
in the report on assessment of compliance prepared by such Servicing Function
Participant. When the Master Servicer, the Special Servicer, the Trustee and
each Servicing Function Participant submit their respective assessments by March
15, as applicable, to the Trustee (and such other trustee), each such party
shall also at such time, if it has received the assessment (and attestation
pursuant to Section 10.13) of each Servicing Function Participant engaged by it,
include such assessment (and attestation) in its submission to the Trustee (and
such other trustee).
Promptly after receipt of each such report on assessment of
compliance, (i) the Depositor (and any depositor for any other securitization
trust relating to a Serviced Companion Loan) shall have the right to review each
such report and, if applicable, consult with the Master Servicer, the Special
Servicer, the Trustee and any Servicing Function Participant as to the nature of
any material instance of noncompliance with the Relevant Servicing Criteria by
the Master Servicer, the Special Servicer, the Trustee or any Servicing Function
Participant, and (ii) the Trustee shall confirm that the assessments, taken
individually address the Relevant Servicing Criteria for each party as set forth
on Schedule II and notify the Depositor (and any depositor for any other
securitization trust relating to a Serviced Companion Loan) of any exceptions.
None of the Master Servicer, the Special Servicer, the Trustee or any Servicing
Function Participant shall be required to deliver, or to endeavor to cause the
delivery of, any such reports until April 15 in any given year so long as it has
received written confirmation from the Depositor (and any other depositor
related to a securitization for a Serviced Companion Loan) that a Form 10-K is
not required to be filed in respect of the Trust (or, in the case of a
securitized Serviced Companion Loan, the related securitization trust) for the
preceding calendar year.
The parties hereto acknowledge that a material instance of
noncompliance with the Relevant Servicing Criteria reported on an assessment of
compliance pursuant to this Section 10.12 by a Master Servicer, the Special
Servicer or the Trustee shall not, as a result of being so reported, in and of
itself, constitute a breach of such parties' obligations, as applicable, under
this Agreement unless otherwise provided for in this Agreement.
Section 10.13 Annual Independent Public Accountants' Servicing
Report. By March 15th, of each year, commencing in March 2007, the Master
Servicer, the Special Servicer and the Trustee, each at its own expense, shall
use reasonable efforts to cause, and each of the preceding parties, as
applicable, shall use commercially reasonable efforts to cause, by March 1
(subject to a 15 calendar day grace period), each Servicing Function Participant
(other than (x) a party to this Agreement or (y) a Loan Seller Sub-Servicer)
with which it has entered into a servicing relationship with respect to the
Mortgage Loans, to cause, each at its own expense), a registered public
accounting firm (which may also render other services to the Master Servicer,
the Special Servicer, the Trustee, such 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 and the Depositor (and other than
with respect to the Trustee's obligation to deliver any such reports, to any
depositor and trustee for any other securitization trust relating to a Serviced
Companion Loan) 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
Relevant 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 compliance with the Relevant Servicing Criteria was fairly stated in
all material respects, or it cannot express an overall opinion regarding such
Reporting Servicer's assessment of compliance with the Relevant Servicing
Criteria. If 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. Such report must be available for general use and not contain
restricted use language.
Promptly after receipt of such report from the Master Servicer, the
Special Servicer, the Trustee, any Servicing Function Participant with which it
has entered into a servicing relationship with respect to the Mortgage Loans
(other than a party to this Agreement), (i) the Depositor (and any other
depositor related to a securitization involving any Serviced Companion Loan)
shall have the right to review the report and, if applicable, consult with the
Master Servicer, the Special Servicer, the Trustee, any such Servicing Function
Participant as to the nature of any material instance of noncompliance by the
Master Servicer, the Special Servicer, the Trustee or any such Servicing
Function Participant with the Servicing Criteria applicable to such person, as
the case may be, in the fulfillment of any of the Master Servicer's, the Special
Servicer's, the Trustee's or the applicable Servicing Function Participant's
obligations hereunder or under any applicable sub-servicing agreement, and (ii)
the Trustee shall confirm that each assessment submitted pursuant to Section
10.12 is coupled with an attestation meeting the requirements of this Section
and notify the Depositor (and any other depositor related to a securitization
involving any Serviced Companion Loan) of any exceptions. None of the Master
Servicer, the Special Servicer, the Trustee 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 (or, in the case of a securitized Serviced
Companion Loan, the related securitization trust) for the preceding fiscal year.
Section 10.14 Exchange Act Reporting Indemnification. Each of the
Master Servicer, the Special Servicer and the Trustee shall indemnify and hold
harmless each Certification Party, the Depositor (and any other depositor
related to a securitization involving any Serviced Companion Loan), their
respective directors and officers, and each other person who controls any such
entity within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, against any and all expenses, losses, claims, damages
and other liabilities, including without limitation the costs of investigation,
legal defense and any amounts paid in settlement of any claim or litigation
arising out of the failure to perform its obligations to the Depositor (and any
other depositor related to a securitization involving any Serviced Companion
Loan) or Trustee (and any other trustee related to a securitization involving
any Serviced Companion Loan) under this Article X by the time required after
giving effect to any applicable grace or cure period.
The Master Servicer, the Special Servicer and the Trustee shall use
commercially reasonable efforts to cause each Servicing Function Participant
(other than (x) any party to this Agreement or (y) a Loan Seller Sub-Servicer)
with which it has entered into a servicing relationship with respect to the
Mortgage Loans to indemnify and hold harmless each Certification Party from and
against any losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments and other costs and expenses incurred by
such Certification Party arising out of a breach of its obligations to provide
any of the annual compliance statements or annual assessment of servicing
criteria or attestation reports pursuant to this Agreement, or the applicable
Sub-Servicing Agreement, as applicable.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Certification Party, then the Master Servicer,
the Special Servicer, the Trustee, each Additional Servicer or other Servicing
Function Participant (the "Performing Party") shall and the Master Servicer, the
Special Servicer and the Trustee shall use reasonable efforts to cause each
Servicing Function Participant with which it has entered into a servicing
relationship (other than (x) a party to this Agreement or (y) any Loan Seller
Sub-Servicer) with respect to the Mortgage Loans to 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 X. The Master Servicer,
the Special Servicer and the Trustee shall use reasonable efforts to cause each
Servicing Function Participant (other than Loan Seller Sub-Servicers) with which
it has entered into a servicing relationship with respect to the Mortgage Loans
to agree to the foregoing indemnification and contribution obligations.
Section 10.15 Amendments. This Article X may be amended by the
written consent of all the parties hereto pursuant to Section 11.07 for purposes
of complying with Regulation AB and/or to conform to standards developed within
the commercial mortgage backed securities market 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 no such amendment without
Certificateholder consent shall eliminate the reports or statements required
under Section 10.11 or Section 10.13.
Section 10.16 Exchange Act Report Signatures; Delivery of Notices;
Interpretation of Grace Periods. (a) Each Form 8-K report, Form 10-D report and
Form 10-K report shall be signed by the Depositor in accordance with procedures
to be agreed upon by the Depositor and the Trustee. The signing party at the
Depositor can be contacted at Deutsche Mortgage & Asset Receiving Corporation at
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxx, with a copy to
Xxx Xxxxxx, Esq.
(b) Notwithstanding anything in Section 11.04 to the contrary, any
notice required to be delivered to the Depositor under this Article X shall be
properly given if sent by facsimile to (000) 000-0000, Attention: Xxxxxx Xxxx,
with a copy to (000) 000-0000, Attention: Xxxx Xxxxx (or such other number as
the Depositor may instruct) and by email to Xxxxxx.Xxxx@xx.xxx, with a copy to
Xxxx.Xxxxx@xxx.xxx (or such other email address as the Depositor may instruct).
(c) For the avoidance of doubt:
(i) No Master Servicer or Special Servicer shall be subject to a
Master Servicer Event of Default or a Special Servicer Event of Default,
as applicable, pursuant to either the last clause of the definition of
Master Servicer Event of Default or the last clause of the definition of
Special Servicer Event of Default, as applicable, nor shall any such party
be deemed to not be in compliance under this Agreement, during any grace
period provided for in this Article X, provided, that if any such party
fails to comply with the delivery requirements of this Article X by the
expiration of any applicable grace period such failure shall constitute a
Master Servicer Event of Default or a Special Servicer Event of Default,
as applicable; and
(ii) No Master Servicer or Special Servicer shall be subject to a
Master Servicer Event of Default or a Special Servicer Event of Default,
as applicable, pursuant to either the last clause of the definition of
Master Servicer Event of Default or the last clause of the definition of
Special Servicer Event of Default, as applicable, nor shall any such party
be deemed to not be in compliance under this Agreement, for failing to
deliver any item required under this Article X by the time required
hereunder with respect to any reporting period for which the Trust is not
required to file Exchange Act reports (which reporting periods will
include any occurring after the Trustee files the Form 15 relating to the
automatic suspension of reporting in respect of the Trust under the
Exchange Act).
Section 10.17 Termination of the Trustee. (a) Notwithstanding
anything to the contrary contained in this Agreement, the Depositor may
immediately terminate the Trustee if the Trustee fails to comply with any of its
obligations under this Article X; provided that (a) such termination shall not
be effective until a successor trustee shall have accepted the appointment, (b)
the Trustee may not be terminated if it cannot perform its obligations due to
its failure to properly prepare or file on a timely basis any Form 8-K, Form
10-K or Form 10-D or any amendments to such forms or any Form 12b-25 where such
failure results from the Trustee's inability or failure to receive, within the
exact time frames set forth in this Agreement any information, approval,
direction or signature from any other party hereto needed to prepare, arrange
for execution or file any such Form 8-K, Form 10-K or Form 10-D or any
amendments to such forms or any form 12b-25 not resulting from its own
negligence, bad faith or willful misconduct, (c) if, following the Trustee's
failure to comply with any of such obligations under Sections 10.06, 10.07,
10.09, 10.11, 10.12 or 10.13 on or prior to the dates by which such obligations
are to be performed pursuant to, and as set forth in, such Sections the Trustee
subsequently complies with such obligations before the Depositor gives written
notice to it that it is terminated in accordance with this Section 10.17 and (d)
the Trustee may not be terminated if the Trustee's failure to comply does not
cause it to fail in its obligations to timely file the related Form 8-K, Form
10-D or Form 10-K, as the case may be, by the related deadline for filing such
Form 8-K, Form 10-D or Form 10-K, then the Depositor shall cease to have the
right to terminate the Trustee under this Section 10.17 on the date on which
such Form 8-K, Form 10-D or Form 10-K is so filed.
Section 10.18 Deliveries in Connection with Securitization of a
Serviced Non-Trust Mortgage Loan.
(a) Each of the Master Servicer and the Special Servicer shall, upon
reasonable written request, permit a related Serviced Companion Loan Noteholder
to use such party's description contained in the Prospectus Supplement (updated
as appropriate by the Master Servicer or the Special Servicer, as applicable)
for inclusion in the disclosure materials relating to any securitization of a
Serviced Companion Loan.
(b) The Master Servicer and the Special Servicer shall each timely
provide (to the extent the reasonable cost thereof is paid or caused to be paid
by the requesting party) to the depositor and any underwriters with respect to
the securitization of any Serviced Companion Loan such opinion(s) of counsel,
certifications and/or indemnification agreement(s) with respect to the updated
description referred in Section 10.18(a) with respect to such party,
substantially identical to those, if any, delivered by the Master Servicer or
the Special Servicer, as the case may be, or their respective counsel, in
connection with the information concerning such party in the Prospectus
Supplement and/or any other disclosure materials relating to the CD 2006-CD3
securitization transaction. Neither the Master Servicer nor the Special Servicer
shall be obligated to deliver any such item with respect to the securitization
of a Serviced Companion Loan if it did not deliver a corresponding item with
respect to the CD 2006-CD3 securitization transaction.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Counterparts. 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.
Section 11.02 Limitation on Rights of Certificateholders. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, or 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, or
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
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, and
nothing herein set forth, or contained in the terms of the Certificates, shall
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; and no Certificateholder shall be under
any liability to any third person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder or any Serviced Companion Loan Noteholder shall
have any right 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
such Certificateholder or such Serviced Companion Loan Noteholder, as
applicable, previously shall have given to the Trustee a written notice of
default and of the continuance thereof, as hereinbefore provided, and unless
also such Serviced Companion Loan Noteholder or the Certificateholders
representing Percentage Interests of at least 25% of each affected Class of
Certificates, as applicable, have (or in the case of the Serviced Companion Loan
Noteholder, has) made written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and have (or in the case
of the Serviced Companion Loan Noteholder, has) offered to the Trustee such
reasonable security or 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 security or indemnity,
shall have failed or refused to institute any such action, suit or proceeding.
It is understood and intended, and expressly covenanted by the Serviced
Companion Loan Noteholder and by each Certificateholder with every other
Certificateholder and the Trustee, that no Serviced Companion Loan Noteholder or
one or more Certificateholder of any Class shall have any right in any manner
whatever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of Serviced Companion Loan Noteholder or the Holders of any
other of such Certificates, or to obtain or seek to obtain priority over or
preference to any other such Companion Loan Noteholder or Certificateholder, or
to enforce any right under this Agreement, except in the manner herein provided
and for the equal, ratable and common benefit of all Companion Loan Noteholders
and Holders of Certificates of such Class, as applicable. For the protection and
enforcement of the provisions of this Section, each and every Companion Loan
Noteholder, Certificateholder and the Trustee shall be entitled to such relief
as can be given either at law or in equity.
Section 11.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
Section 11.04 Notices. Unless otherwise specified in this Agreement,
all demands, notices and communications hereunder shall be in writing, shall be
deemed to have been given upon receipt (except that notices to Holders of Class
R and Class LR Certificates or Holders of any Class of Certificates no longer
held through a Depository and instead held in registered, definitive form shall
be deemed to have been given upon being sent by first-class mail, postage
prepaid or by overnight courier) as follows:
If to the Trustee or Paying Agent, to:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group-CD 2006-CD3
If to the Depositor, to:
Deutsche Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
If to the General Master Servicer, to:
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Servicing Manager Director
Telecopy No.: (000) 000-0000
with a copy to:
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
If to Master Servicer No. 2, to:
Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx, XXX0
Xxxxxxxxx, XX 00000-0000
Attention: CD 2006-CD3
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx & Bird
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention: Attn: Xxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
If to the Special Servicer, to:
X.X. Xxxxxx Company, Inc.
00000 X. Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx, 00000
Attention: Xxxx Xxxxxxxxxxx
Phone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
X.X. Xxxxxx Company, Inc.
0000 Xxxxx Xxxx.
Xxxxx 0000
XxXxxx, Xxxxxxxx
00000-0000
Attention: Xxxxx X. Xxxxxxx
Phone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to the German American Capital Corporation, to:
German American Capital Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
If to Citigroup Global Markets Realty Corp., as Mortgage Loan Seller, to:
Citigroup Global Markets Realty Corp.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy No.: (000) 000-0000
If to Capmark Finance Inc., as Mortgage Loan Seller, to:
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
(000) 000-0000 (phone)
(000) 000-0000 (fax)
If to the Underwriters, to:
Deutsche Bank Securities, Inc.
Commercial Mortgage-Backed Securities
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxx
Citigroup Global Markets, Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy No.: (000) 000-0000
If to any Certificateholder, to:
the address set forth in the Certificate Register,
If to the initial Controlling Class Representative
JER Investors Trust Inc.
0000 Xxxxx Xxxx.
Xxxxx 0000
XxXxxx, Xxxxxxxx
00000-0000
Attention: Xxxxx X. Xxxxxxx
Phone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
X.X. Xxxxxx Company, Inc.
00000 X. Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx, 00000
Attention: Xxxx Xxxxxxxxxxx
Phone No.: (000) 000-0000
Telecopy No.: (000) 000-0000;
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
Section 11.05 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, to the extent permitted by applicable law,
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 11.06 Notice to the Depositor and Each Rating Agency. (a)
The Trustee shall use its best efforts to promptly provide notice (and, in the
case of subsection (vii), promptly furnish or make available) to the Depositor,
the Underwriters, the Controlling Class Representative and each Rating Agency
with respect to each of the following of which a Responsible Officer of the
Trustee 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 merger, consolidation, resignation or termination of
either Master Servicer, the Special Servicer or the Trustee;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(d);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of a Collection Account, the
Serviced Whole Loan Collection Account, the Distribution Accounts, the
Interest Reserve Account, or the Excess Liquidation Proceeds Account; and
(vii) each report to Certificateholders described in Section 4.02,
Section 3.13 and Section 3.22.
(b) The Master Servicer shall promptly furnish to each Rating Agency
copies of the following:
(i) each of its annual statements as to compliance described in
Section 10.11;
(ii) each of its annual independent public accountants' servicing
reports described in Section 10.13;
(iii) a copy of each rent roll and each operating and other
financial statement and occupancy reports, to the extent such information
is required to be delivered under a Mortgage Loan, in each case to the
extent collected pursuant to Section 3.03;
(iv) a copy of any notice with respect to a breach of a
representation or warranty with respect to any Mortgage Loan;
(v) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Master Servicer;
(vi) any change in the lien priority of a Mortgage Loan;
(vii) any new lease of an anchor or a termination of an anchor lease
at a retail Mortgaged Property;
(viii) any material damage to a Mortgaged Property; and
(ix) any amendment, modification, consent or waiver to or of any
provision of a Mortgage Loan.
(c) The Trustee, the Master Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency with respect to the Trust Fund,
a Mortgaged Property, a Borrower and a Specially Serviced Loan such information
as the Rating Agency and the Depositor shall reasonably request and which the
Trustee, the Master Servicer or the Special Servicer, can reasonably provide in
accordance with applicable law and without violating the terms of this Agreement
or any Loan Documents. The Rating Agencies shall not be charged any fee or
expense in connection therewith. Each party hereto shall send copies to the
Depositor of any information that it provided to any Rating Agency.
Notwithstanding anything to the contrary herein, nothing in this Section 11.06
shall require a party to provide duplicative notices or copies to the Rating
Agencies with respect to any of the above listed items.
(d) Notices to each Rating Agency shall be addressed as follows:
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance Group
Telecopy: (000) 000-0000
Xxxxx'x Investors Services, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance Group
Telecopy: (000) 000-0000
or in each case to such other address as either Rating Agency shall specify by
written notice to the parties hereto.
Section 11.07 Amendment. This Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Master Servicer, the Special
Servicer and the Trustee without the consent of any of the Certificateholders or
the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to correct
any error; (ii) to cause the provisions herein to conform or be consistent with
or in furtherance of the statements made in the Prospectus, the Private
Placement Memorandum, in each case, with respect to the Certificates, the Trust
or this Agreement or to correct or supplement any provisions herein or therein
which may be defective or inconsistent with any other provisions herein or
therein; (iii) to amend any provision hereof to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes of
Certificates by each Rating Agency; and (iv) to amend or supplement a provision,
or to supplement any other provisions to the extent not inconsistent with the
provisions of this Agreement, or any other change which will not adversely
affect in any material respect the interests of any Certificateholder or
Serviced Companion Loan Noteholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel or, if solely affecting any Certificateholder
or Serviced Companion Loan Noteholder, confirmation in writing from each Rating
Agency then rating any Certificates that such amendment will not result in a
qualification, withdrawal or downgrading of the then-current ratings assigned to
the Certificates. In no event shall any such amendment cause the Lower-Tier
REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC or the Grantor Trust
to fail to qualify as a grantor trust.
This Agreement or any Custodial Agreement may also be amended from
time to time by the Depositor, the Master Servicer, the Special Servicer and the
Trustee with the prior written consent of the Holders of Certificates
representing not less than 66-2/3% of the Percentage Interests of each Class of
Certificates affected thereby and each Serviced Companion Loan Noteholder
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 modifying in
any manner the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required to be
distributed on any Certificate, without the consent of the Holders of
Certificates representing all of the Percentage Interests of the Class or
Classes affected thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of such Serviced
Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or inaction under
this Agreement;
(iii) alter the Servicing Standard or obligations of either Master
Servicer or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected thereby and the
consent of each affected Serviced Companion Loan Noteholder; or
(iv) amend any section hereof which relates to the amendment of this
Agreement without the consent of the Holders of all Certificates
representing all of the Percentage Interests of the Class or Classes
affected thereby and the consent of any affected Serviced Companion Loan
Noteholders.
Further, the Depositor, the Master Servicer, the Special Servicer
and the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan Noteholders,
may amend this Agreement to modify, eliminate or add to any of its provisions to
such extent as shall be necessary to maintain the qualification of the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or the qualification of the
Grantor Trust as a Grantor Trust, or to prevent the imposition of any additional
material state or local taxes, at all times that any Certificates are
outstanding; provided, that such action, as evidenced by an Opinion of Counsel
(obtained at the expense of the Trust Fund), is necessary or helpful to maintain
such qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any Certificateholder
or, if applicable, any Serviced Companion Loan Noteholder.
In the event that neither the Depositor nor any successor thereto,
if any, is in existence, any amendment under this Section 11.07 shall be
effective with the consent of the Trustee, the Master Servicer and the Special
Servicer, in writing, and to the extent required by this Section 11.07, the
Certificateholders and Serviced Companion Loan Noteholders. Promptly after the
execution of any amendment, the Master Servicer shall forward to the Trustee and
the Special Servicer, and the Trustee shall furnish written notification of the
substance of such amendment to each Certificateholder, each Serviced Companion
Loan Noteholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders
under this Section 11.07 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The method of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders and, if applicable,
Serviced Companion Loan Noteholders, shall be subject to such reasonable
regulations as the Trustee may prescribe; provided, however, that such method
shall always be by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no
amendment shall be made to this Agreement or any Custodial Agreement unless the
Trustee has received an Opinion of Counsel, at the expense of the party
requesting such amendment (or, if such amendment is required by any Rating
Agency to maintain the rating issued by it or requested by the Trustee for any
purpose described in clause (i), (ii) or (iii) of the first sentence of this
Section, then at the expense of the Trust Fund; provided that with respect to
such amounts attributable to a Serviced Whole Loan, after any allocation to the
related B Loans to the extent permitted under the related Co-Lender Agreement,
to the effect that such amendment is permitted hereunder and such amendment will
not cause the Lower-Tier REMIC or the Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Certificates are outstanding, or cause the Grantor
Trust to fail to qualify as a Grantor Trust, or cause a tax to be imposed on the
Trust Fund, any such REMIC or the Grantor Trust.
Prior to the execution of any amendment to this Agreement or any
Custodial Agreement, the Trustee, the Special Servicer and the Master Servicer
may request and shall be entitled to rely conclusively upon an Opinion of
Counsel, at the expense of the party requesting such amendment (or, if such
amendment is required by any Rating Agency to maintain the rating issued by it
or requested by the Trustee for any purpose described in the first sentence of
this Section 11.07 (which do not modify or otherwise relate solely to the
obligations, duties or rights of the Trustee), then at the expense of the Trust
Fund) stating that the execution of such amendment is authorized or permitted by
this Agreement. The Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Trustee's own rights, duties or immunities
under this Agreement.
Notwithstanding any contrary provision contained in this Agreement,
no amendment shall be made to this Agreement which shall affect the obligations
of any Mortgage Loan Seller without the consent of such Mortgage Loan Seller.
Section 11.08 Confirmation of Intent. It is the express intent of
the parties hereto that the conveyance of the Trust Fund (including the Mortgage
Loans) by the Depositor to the Trustee on behalf of Certificateholders as
contemplated by this Agreement and the sale by the Depositor of the Certificates
be, and be treated for all purposes as, a sale by the Depositor of the undivided
portion of the beneficial interest in the Trust Fund represented by the
Certificates. It is, further, not the intention of the parties that such
conveyance be deemed a pledge of the Trust Fund by the Depositor to the Trustee
to secure a debt or other obligation of the Depositor. However, in the event
that, notwithstanding the intent of the parties, the Trust Fund is held to
continue to be property of the Depositor then (a) this Agreement shall also be
deemed to be a security agreement under applicable law; (b) the transfer of the
Trust Fund provided for herein shall be deemed to be a grant by the Depositor to
the Trustee on behalf of Certificateholders of a first priority security
interest in all of the Depositor's right, title and interest in and to the Trust
Fund and all amounts payable to the holders of the Mortgage Loans in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Accounts, any Serviced Whole Loan Collection Account,
the Distribution Accounts, the Interest Reserve Account, any REO Account and any
Excess Liquidation Proceeds Account whether in the form of cash, instruments,
securities or other property; (c) the possession by the Trustee (or the
Custodian on its behalf) of Notes and such other items of property as constitute
instruments, money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party" for purposes of perfecting the security
interest pursuant to Section 9-313 of the Delaware Uniform Commercial Code; and
(d) notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from Persons holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. Any assignment of the
interest of the Trustee pursuant to any provision hereof shall also be deemed to
be an assignment of any security interest created hereby. The Depositor shall,
and upon the request of either Master Servicer, the Trustee shall, to the extent
consistent with this Agreement (and at the expense of the Trust Fund), take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans or Serviced Whole Loans, such
security interest would be deemed to be a perfected security interest of first
priority under applicable law and will be maintained as such throughout the term
of this Agreement. It is the intent of the parties that such a security interest
would be effective whether any of the Certificates are sold, pledged or
assigned.
Section 11.09 No Intended Third-Party Beneficiaries. Except as
specified in Section 11.12, no Person other than a party to this Agreement, any
Mortgage Loan Seller or any Certificateholder shall have any rights with respect
to the enforcement of any of the rights or obligations hereunder. Without
limiting the foregoing, the parties to this Agreement specifically state that no
Borrower, Manager or other party to a Mortgage Loan is an intended third-party
beneficiary of this Agreement.
Section 11.10 [Reserved]
Section 11.11 Entire Agreement. This Agreement and with respect to
each Serviced Companion Loan Noteholder, the related Co-Lender Agreement
contains the entire agreement and understanding between the parties hereto with
respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements, understanding, inducements and conditions, express
or implied, oral or written, of any nature whatsoever with respect to the
subject matter hereof. The express terms hereof control and supersedes any
course of performance or usage of the trade inconsistent with any of the terms
hereof.
Section 11.12 Third Party Beneficiaries. (a) Each of the Trustee and
the Master Servicer acknowledges that each holder of a Serviced Companion Loan
is an intended third party beneficiary in respect of the rights afforded it
under this Agreement and may directly enforce such rights.
IN WITNESS WHEREOF, the Depositor, the Master Servicer, the Special
Servicer, the Trustee and the Paying Agent have caused their names to be signed
hereto by their respective officers thereunto duly authorized all as of the day
and year first above written.
DEUTSCHE MORTGAGE & ASSET
RECEIVING CORPORATION,
as Depositor
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
CAPMARK FINANCE INC.,
as Master Servicer
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
X.X. XXXXXX COMPANY, INC., as Special
Servicer
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Paying Agent
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 26th day of October in the year 2006, before me, the
undersigned, personally appeared Xxxxxxx X. Xxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
[Notary Seal]
This instrument prepared by:
Name: Cadwalader, Xxxxxxxxxx & Xxxx LLP
Address: One World Financial Center
New York, New York 10281
STATE OF PENNSYLVANIA )
: ss.:
COUNTY OF XXXXXXXXXX )
On the 27th day of October in the year 2006, before me, the
undersigned, personally appeared Xxxxxx Xxxxxxxxxx, Vice President, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ Xxxx Xxxxx
----------------------------------------
Notary Public
[Notary Seal]
This instrument prepared by:
Name: Cadwalader, Xxxxxxxxxx & Xxxx LLP
Address: One World Financial Center
New York, New York 10281
STATE OF NORTH CAROLINA )
: ss.:
COUNTY OF MECKLENBURG )
On the 25th day of October in the year 2006, before me, the
undersigned, personally appeared Xxxxxxx X. Xxxxxxxx, personally known to me to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that she executed the same in her capacity, and that by her
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxx X. Xxxx
----------------------------------------
Notary Public
[Notary Seal]
This instrument prepared by:
Name: Cadwalader, Xxxxxxxxxx & Xxxx LLP
Address: One World Financial Center
New York, New York 10281
STATE OF VIRGINIA )
: ss.:
COUNTY OF FAIRFAX )
On the 25th day of October in the year 2006, before me, the
undersigned, personally appeared Xxxxx Xxxxxxx, personally known to me or proved
to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ Xxxxxx Xxxxxx
----------------------------------------
Notary Public
[Notary Seal]
This instrument prepared by:
Name: Cadwalader, Xxxxxxxxxx & Xxxx LLP
Address: One World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
XXXXX XX XXXXXXXX )
: ss.:
COUNTY OF XXXX )
On this 26th day of October 2006, before me, Xxxxx X'Xxxx, a notary
public in and for said State, personally appeared Xxxxxx X. Xxxxx, known to me
to be a First Vice President of LaSalle Bank National Association, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of said entity, and acknowledged to me that
such entity 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
----------------------------------------
Xxxxx X'Xxxx
Notary Public, State of Illinois, County of Xxxx
My commission expires: September 22, 2009
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS [A-1][A-1D] GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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, AND CERTAIN OTHER ASSETS.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-1
Class [A-1][A-1D] Pass-Through Rate: CUSIP:
[5.454][4.181]%
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class [A-1][A-1D] Certificates: this Certificate:
$[23,000,000][55,000,000] $[23,000,000][55,000,000]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: [A-1][A-1D]
September 15, 2011
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class A-1 Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
[A-1][A-1D], Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-5, Class
A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C, Class D,
Class E, Class F, Class XS, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q, Class S, Class T, Class R and
Class LR Certificates (together with the Class A-1 Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 [A-l][A-1D] Certificates for such Distribution Date,
all as more fully described in the Pooling and Servicing Agreement. Holders
of this Certificate may be entitled to Prepayment Premiums and Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class [A-1][A-1D] Certificates will be calculated based on a 360-day
year consisting of twelve 30-day months on the outstanding Certificate
Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class A-1
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class A-l Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-2
FORM OF CLASS A-2 GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-2
Class A-2 Pass-Through Rate: 5.560% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-2 Certificates: $338,000,000 this Certificate: $338,000,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: A-2-1
February 15, 2012
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class A-2 Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-3, Class AB, Class X-0, Xxxxx X-0, Class A-1S, Class
A-M, Class A-J, Class A-1A, Class XP, Class B, Class C, Class D, Class E,
Class F, Class XS, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S, Class T, Class R and Class LR
Certificates (together with the Class A-2 Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 A-2 Certificates for such Distribution Date, all as
more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class A-2 Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class CS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class A-2
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class A-2 Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-3
FORM OF CLASS A-3 GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-3
Class A-3 Pass-Through Rate: 5.607% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-3 Certificates: $97,400,000 this Certificate: $97,400,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: A-3-1
October 15, 2013
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class A-3 Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-AB, Class A-4, Class A-5, Class A-1S,
Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C, Class D, Class
E, Class F, Class XS, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S, Class T, Class R and Class LR
Certificates (together with the Class A-3 Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 A-3 Certificates for such Distribution Date, all as
more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class A-3 Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, Trust Fund's beneficial interest in a
Mortgaged Property acquired with respect to a Non-Serviced Mortgage Loan)
remaining in the Trust Fund as contemplated by clause (ii) of Section 9.01(a)
and Section 9.01(g) of the Pooling and Servicing Agreement by giving written
notice to all the parties to the Pooling and Servicing Agreement no later
than 60 days prior to the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class A-3
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class A-3 Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-4
FORM OF CLASS A-AB GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-AB
Class A-AB Pass-Through Rate: 5.608% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-AB Certificates: $89,260,000 this Certificate: $89,260,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: A-AB-1
April 15, 2015
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class A-AB Certificates. The Trust Fund,
described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens on commercial, multifamily and manufactured housing
properties and held in trust by the Trustee and serviced by the applicable
Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling and Servicing Agreement (as defined below).
The Holder of this Certificate, by virtue of the acceptance hereof, assents
to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-4,
Class A-5, Class A-1S, Class A-1B, Class A-X, Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class XS, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class
T, Class R and Class LR Certificates (together with the Class A-AB
Certificates, the "Certificates"; the Holders of Certificates issued under
the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement. The Trustee 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 and has executed this
Certificate in its limited capacity as Trustee under the Pooling and
Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 A-AB Certificates for such Distribution Date, all as
more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class A-AB Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class A-AB
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class A-AB Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-5
FORM OF CLASS A-4 GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-4
Class A-4 Pass-Through Rate: 5.658% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-4 Certificates: $127,000,000 this Certificate: 127,000,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: A-4-1
December 15, 2015
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class A-4 Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-1S, Class A-M,
Class A-J, Class A-1A, Class XP, Class B, Class C, Class D, Class E, Class F,
Class XS, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q, Class S, Class T, Class R and Class LR
Certificates (together with the Class A-4 Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 A-4 Certificates for such Distribution Date, all as
more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class A-4 Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and XP Certificates, for all of the Mortgage Loans and each REO
Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class A-4
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class A-4 Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-6
FORM OF CLASS A-5 GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-5
Class A-5 Pass-Through Rate: 5.617% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-4 Certificates: $1,412,355,000 this Certificate: 1,412,355,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: A-5-1
September 15, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class A-4 Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-1S,
Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C, Class D, Class
E, Class F, Class XS, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S, Class T, Class R and Class LR
Certificates (together with the Class A-5 Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 A-5 Certificates for such Distribution Date, all as
more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class A-4 Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and XP Certificates, for all of the Mortgage Loans and each REO
Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class A-5
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class A-5 Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-7
FORM OF CLASS A-1S GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-1S
Class A-1S Pass-Through Rate: 5.614% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-1S Certificates: $154,970,000 this Certificate: $154,970,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: A-1S
September 15, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class A-1S Certificates. The Trust Fund,
described more fully below, consists primarily of a pool of Mortgage Loans
secured by first liens on commercial, multifamily and manufactured housing
properties and held in trust by the Trustee and serviced by the applicable
Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling and Servicing Agreement (as defined below).
The Holder of this Certificate, by virtue of the acceptance hereof, assents
to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-5, Class A-1S, Class A-M, Class A-J, Class A-1A. Class XP,
Class B, Class C, Class D, Class E, Class F, Class XS, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class
S, Class T, Class R and Class LR Certificates (together with the Class A-1S
Certificates, the "Certificates"; the Holders of Certificates issued under
the Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 A-1S Certificates for such Distribution Date, all as
more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class A-1S Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class S and Class XS Certificates, for all of the Mortgage Loans and each REO
Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class A-1S
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class A-1S Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-8
FORM OF CLASS A-M GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
THIS CLASS A-1B CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-M
Class A-M Pass-Through Rate: 5.648% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-1B Certificates: $328,240,000 this Certificate: $328,240,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: A-M
October 15, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to be
made with respect to the Class A-1B Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held in
trust by the Trustee and serviced by the applicable Servicer. The Trust Fund was
created, and the Mortgage Loans are to be serviced, pursuant to the Pooling and
Servicing Agreement (as defined below). The Holder of this Certificate, by
virtue of the acceptance hereof, assents to the terms, provisions and conditions
of the Pooling and Servicing Agreement and is bound thereby. Also issued under
the Pooling and Servicing Agreement are the Class A-1, Class A-1D, Class A-2,
Class A-3, Class A-AB, Class A-4, Class A-5, Class A-1S, Class A-J, Class A-1A,
Class XP, Class B, Class C, Class D, Class E, Class F, Class XS, Class G, Class
H, Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class
S, Class T, Class R and Class LR Certificates (together with the Class A-M
Certificates, the "Certificates"; the Holders of Certificates issued under the
Pooling and Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
To the extent not defined herein, capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement. Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 A-1B Certificates for such Distribution Date, all as
more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class A-1B Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class A-M
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class A-M Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Office
EXHIBIT A-9
FORM OF CLASS A-J GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-J
Class A-J Pass-Through Rate: 5.688% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-J Certificates: $270,800,000 this Certificate: $270,800,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: A-J-1
November 15, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class A-J Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class AB, Class X-0, Xxxxx X-0, Class
A-1S, Class A-1B, Class X, Class A-M, Class B, Class C, Class D, Class E,
Class F, Class XS, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S, Class T, Class R and Class LR
Certificates (together with the Class A-J Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent.
To the extent not defined herein, capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement. The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 A-J Certificates for such Distribution Date, all as
more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class A-J Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class A-J
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class A-J Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-10
FORM OF CLASS A-1A GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS A-1A
Class A-1A Pass-Through Rate: 5.634% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class A-1A Certificates: $255,000,000 this Certificate: $255,000,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: A-1A-1
November 15, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class A-M Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class AB, Class X-0, Xxxxx X-0, Class
A-1S, Class A-M, Class A-J, Class XP, Class B, Class C, Class D, Class E,
Class F, Class XS, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S, Class T, Class R and Class LR
Certificates (together with the Class A-1A Certificates, the "Certificates";
the Holders of Certificates issued under the Pooling and Servicing Agreement
are collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 A-1A Certificates for such Distribution Date, all as
more fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class A-M Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class A-1A
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class A-1A Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-11
FORM OF CLASS [XS][XP]
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
THE HOLDERS OF THIS CLASS X CERTIFICATE WILL BE ENTITLED ONLY TO
DISTRIBUTIONS OF INTEREST ON THE NOTIONAL BALANCE OF THE CLASS X CERTIFICATES
AND WILL NOT BE ENTITLED TO ANY DISTRIBUTIONS WITH RESPECT TO PRINCIPAL. THE
NOTIONAL BALANCE OF THE CLASS X CERTIFICATES IS EQUAL TO AN AMOUNT AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO BELOW. ACCORDINGLY,
THE OUTSTANDING NOTIONAL BALANCE OF THIS CERTIFICATE AT ANY TIME MAY BE LESS
THAN THE INITIAL NOTIONAL BALANCE SET FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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, AND CERTAIN OTHER ASSETS.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS [XS][XP]
Class X Pass-Through Rate: Variable CUSIP:
ISIN:
Original Aggregate Notional Balance of the Initial Notional Balance of this
Class [XS][XP] Certificates: Certificate: [3,571,360,872]
$[3,571,360,872][3,504,824,000] [3,504,824,000]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: [XS][XP]-[__]
N/A
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class X Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class XS, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class T, Class
R and Class LR Certificates (together with the Class [XS][XP] Certificates,
the "Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent.
To the extent not defined herein, capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement. To the extent not defined herein, capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 [XS][XP] Certificates for such Distribution Date, all as more fully
described in the Pooling and Servicing Agreement. Holders of this Certificate
may be entitled to Prepayment Premiums, Yield Maintenance Charges and the
Yorktowne Plaza Yield Maintenance Amount as provided in the Pooling and
Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class X Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Notional Balance hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class [XS][XP]
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class [XS][XP] Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class [XS][XP]
Schedule A
Remaining Notional
Notional Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-12
FORM OF CLASS B GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS B
Class B Pass-Through Rate: 5.728% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class B Certificates: $22,321,000 this Certificate: $22,321,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: B-1
November 15, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class B Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the
Class-A1, Class A-1D, Class X-0, Xxxxx X-0, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class C, Class D,
Class E, Class F, Class XS, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q, Class S, Class T, Class R and
Class LR Certificates (together with the Class B Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent.
To the extent not defined herein, capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement. The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 B Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class B Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class B
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class B Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-13
FORM OF CLASS C GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS C
Class C Pass-Through Rate: 5.748% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class C Certificates: $53,571,000 this Certificate: $53,571,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: C-1
November 15, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class C Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class D, Class E, Class
F, Class XS, Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q, Class S, Class T, Class R and Class LR
Certificates (together with the Class C Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent.
To the extent not defined herein, capitalized terms used herein
shall have the meanings assigned thereto in the Pooling and Servicing
Agreement. The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 C Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class C Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class C
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class C Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-14
FORM OF CLASS D GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS D
Class D Pass-Through Rate: 5.748% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class D Certificates: $31,249,000 this Certificate: $31,249,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: D-1
November 15, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class D Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class E, Class F, Class XS, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q, Class S, Class T, Class R and
Class LR Certificates (together with the Class D Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 D Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class D Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class D
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class D Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-15
FORM OF CLASS E GLOBAL CERTIFICATE
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 DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS E
Class E Pass-Through Rate: 5.817% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class E Certificates: $22,321,000 this Certificate: $22,321,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: E-1
November 15, 2016
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class E Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class A-M, Class A-J,
Class B, Class C, Class D, Class F, Class XS, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class
T, Class R and Class LR Certificates (together with the Class E Certificates,
the "Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 D Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class E Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class E
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class E Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
________________________________________
Authorized Signatory
EXHIBIT A-16
FORM OF CLASS F
GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS F CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](2)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS F
Class F Pass-Through Rate: 5.892% CUSIP:
ISIN:
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class F Certificates: $26,786,000 this Certificate: $26,786,000
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: F-1
May 15, 2021
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class F Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class S, Class T, Class R and Class LR
Certificates (together with the Class F Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 F Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class F Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class F
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class F Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class F
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-17
FORM OF CLASS G
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS G CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](3)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS G
Class G Pass-Through Rate: 5.99% CUSIP: [_](2) [_] (1)
ISIN: [_](2) [_] (1)
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class G Certificates: $44,642,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: G-1
May 15, 2021
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class G Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class H, Class J, Class K, Class L, Class M, Class
N, Class O, Class P, Class Q, Class S, Class T, Class R and Class LR
Certificates (together with the Class G Certificates, the "Certificates"; the
Holders of Certificates issued under the Pooling and Servicing Agreement are
collectively referred to herein as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 G Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class G Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class G
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class G Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class G
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-18
FORM OF CLASS H
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS H CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](4)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS H
Class H Pass-Through Rate: 6.126% CUSIP: [_](2) [_]
ISIN: [_](2) [_]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class H Certificates: $40,177,000 this Certificate: [__________]2
[$0]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: H-1
September 15, 2021
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class H Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class XS, Class G, Class J, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q, Class S, Class T, Class R and
Class LR Certificates (together with the Class H Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 H Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class H Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class H
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class H Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class H
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-19
FORM OF CLASS J
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS J CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](5)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS J
Class J Pass-Through Rate: 6.224% CUSIP: [00000XXX0](2) [X0000XXX0]
ISIN: [US12513XAS18](2)
[USU1252RAE00]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class J Certificates: $40,178,000 this Certificate: [$_________]2
[$0]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: J-1
Xxxx 15, 2021
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class J Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class XS, Class G, Class H, Class K, Class L,
Class M, Class N, Class O, Class P, Class Q, Class S, Class T, Class R and
Class LR Certificates (together with the Class J Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 J Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class J Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee Administrator has caused this
Class J Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class J Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class J
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-20
FORM OF CLASS K
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS K CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO 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 OTHER PLAN
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 COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE
INVESTED, AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA
OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS
OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS
I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR
LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM
SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM ATTACHED TO THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH ENTITY SHALL
PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR AGREEMENTS AS MAY
BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE DEPOSITOR, THE
TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE PURCHASE AND
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL
BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF
ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF
THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY SIMILAR
EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](6)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS K
Class K Pass-Through Rate: 6.305% CUSIP: [_](2) [_]
ISIN: [_](2) [_]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class K Certificates: $40,178,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: K-1
September 15, 2021
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class K Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class XS, Class G, Class H, Class J, Class L,
Class M, Class N, Class O, Class P, Class Q, Class S, Class T, Class R and
Class LR Certificates (together with the Class K Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 K Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class K Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class K
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class K Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class K
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-21
FORM OF CLASS L
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS L CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO 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 OTHER PLAN
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 COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE
INVESTED, AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA
OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS
OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS
I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR
LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM
SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM ATTACHED TO THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH ENTITY SHALL
PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR AGREEMENTS AS MAY
BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE DEPOSITOR, THE
TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE PURCHASE AND
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL
BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF
ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF
THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY SIMILAR
EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](7)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS L
Class L Pass-Through Rate: 5.330% CUSIP: [_](2) [_]
ISIN: [_](2) [_]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class L Certificates: $13,393,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: L-1
September 15, 2021
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class L Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class XS, Class G, Class H, Class J, Class K,
Class M, Class N, Class O, Class P, Class Q, Class S, Class T, Class R and
Class LR Certificates (together with the Class L Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in September 2005 (each such date, a
"Distribution 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 L Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class L Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class L
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class L Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class L
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-22
FORM OF CLASS M
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS M CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO 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 OTHER PLAN
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 COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE
INVESTED, AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA
OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS
OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS
I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR
LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM
SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM ATTACHED TO THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH ENTITY SHALL
PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR AGREEMENTS AS MAY
BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE DEPOSITOR, THE
TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE PURCHASE AND
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL
BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF
ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF
THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY SIMILAR
EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](8)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS M
Class M Pass-Through Rate: 5.330% CUSIP: [_](2) [_]
ISIN: [_](2) [_]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class M Certificates: $8,928,000 this Certificate: [$_________]2
[$0]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: M-1
September 15, 2021
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class M Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class XS, Class G, Class H, Class J, Class K,
Class L, Class N, Class O, Class P, Class Q, Class S, Class T, Class R and
Class LR Certificates (together with the Class M Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 M Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class M Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class M
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class M Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class M
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-23
FORM OF CLASS N
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS N CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO 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 OTHER PLAN
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 COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE
INVESTED, AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA
OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS
OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS
I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR
LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM
SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM ATTACHED TO THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH ENTITY SHALL
PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR AGREEMENTS AS MAY
BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE DEPOSITOR, THE
TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE PURCHASE AND
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL
BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF
ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF
THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY SIMILAR
EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](9)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS N
Class N Pass-Through Rate: 5.330% CUSIP: [_](2) [_]
ISIN: [_](2) [_]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class N Certificates: $13,393,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: N-1
September 15, 2021
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class N Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class XS, Class G, Class H, Class J, Class K,
Class L, Class M, Class O, Class P, Class Q, Class S, Class T, Class R and
Class LR Certificates (together with the Class N Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 N Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class N Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class N
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class N Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class N
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-24
FORM OF CLASS O
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS O CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO 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 OTHER PLAN
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 COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE
INVESTED, AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA
OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS
OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS
I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR
LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM
SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM ATTACHED TO THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH ENTITY SHALL
PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR AGREEMENTS AS MAY
BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE DEPOSITOR, THE
TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE PURCHASE AND
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL
BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF
ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF
THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY SIMILAR
EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](10)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS O
Class O Pass-Through Rate: 5.330% CUSIP: [_](2) [_]
ISIN: [_](2) [_]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class O Certificates: $4,464,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: O-1
September, 2021
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class O Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class XS, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class P, Class Q, Class S, Class T, Class R and
Class LR Certificates (together with the Class O Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 O Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class O Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class O
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class O Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class O
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-25
FORM OF CLASS P
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS P CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO 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 OTHER PLAN
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 COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE
INVESTED, AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA
OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS
OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS
I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR
LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM
SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM ATTACHED TO THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH ENTITY SHALL
PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR AGREEMENTS AS MAY
BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE DEPOSITOR, THE
TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE PURCHASE AND
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL
BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF
ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF
THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY SIMILAR
EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](11)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS P
Class P Pass-Through Rate: 5.330% CUSIP: [_](2) [_]
ISIN: [_](2) [_]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class P Certificates: $13,392,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: P-1
September 15, 2021
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class P Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class XS, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class Q, Class S, Class T, Class R and
Class LR Certificates (together with the Class P Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 P Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class P Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent of
any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class P
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class P Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class P
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-26
FORM OF CLASS Q
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS P CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO 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 OTHER PLAN
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 COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE
INVESTED, AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA
OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS
OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS
I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR
LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM
SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM ATTACHED TO THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH ENTITY SHALL
PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR AGREEMENTS AS MAY
BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE DEPOSITOR, THE
TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE PURCHASE AND
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL
BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF
ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF
THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY SIMILAR
EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](12)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS Q
Class Q Pass-Through Rate: 5.330% CUSIP: [_](2) [_]
ISIN: [_](2)[_]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class Q Certificates: $4,465,000 this Certificate:
[$_________](2) [$0]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: Q-1
September 15, 2021
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class Q Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class XS, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class S, Class T, Class R and
Class LR Certificates (together with the Class Q Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 P Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class Q Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class Q
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class Q Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class Q
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-27
FORM OF CLASS S
[RULE 144A] [REG S] GLOBAL CERTIFICATE
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 HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
PRINCIPAL PAYMENTS ON THIS CERTIFICATE ARE PAYABLE IN INSTALLMENTS AS SET
FORTH THEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
CERTIFICATE AT ANY TIME MAY BE LESS THAN THE INITIAL CERTIFICATE BALANCE SET
FORTH BELOW.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CLASS P CERTIFICATE IS SUBORDINATE TO ONE OR MORE OTHER CLASSES OF
CERTIFICATES AS AND TO THE EXTENT SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO 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 OTHER PLAN
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 COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE
INVESTED, AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA
OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN OTHER THAN AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER CIRCUMSTANCES
WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH CERTIFICATE BY SUCH
INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION PROVISIONS
OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF THE CODE UNDER SECTIONS
I AND III OF PTCE 95-60 OR A SUBSTANTIALLY SIMILAR EXEMPTION UNDER SIMILAR
LAW. TRANSFEREES OF THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM
SHALL BE REQUIRED EITHER (i) TO DELIVER A LETTER IN THE FORM ATTACHED TO THE
POOLING AND SERVICING AGREEMENT TO SUCH EFFECT, OR (ii) IN THE EVENT THE
TRANSFEREE IS SUCH AN ENTITY SPECIFIED IN (A) OR (B) ABOVE, SUCH ENTITY SHALL
PROVIDE ANY OPINIONS OF COUNSEL, OFFICERS' CERTIFICATES OR AGREEMENTS AS MAY
BE REQUIRED BY, AND IN FORM AND SUBSTANCE SATISFACTORY TO, THE DEPOSITOR, THE
TRUSTEE AND THE CERTIFICATE REGISTRAR, TO THE EFFECT THAT THE PURCHASE AND
HOLDING OF THE CERTIFICATES BY OR ON BEHALF OF A PLAN WILL NOT CONSTITUTE OR
RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION WITHIN THE MEANING OF SECTION
406 OR 407 OF ERISA OR SECTION 4975 OF THE CODE, AND WILL NOT SUBJECT THE
SERVICERS, THE SPECIAL SERVICER, THE DEPOSITOR, THE TRUSTEE OR THE
CERTIFICATE REGISTRAR TO ANY OBLIGATION OR LIABILITY. THE TRANSFEREE OF A
BENEFICIAL INTEREST IN A "GLOBAL CERTIFICATE" THAT IS A "RESTRICTED
CERTIFICATE" (EACH AS DEFINED IN THE POOLING AND SERVICING AGREEMENT) SHALL
BE DEEMED TO REPRESENT THAT IT IS NOT A PLAN OR A PERSON ACTING ON BEHALF OF
ANY PLAN OR USING THE ASSETS OF ANY PLAN TO ACQUIRE SUCH INTEREST, OTHER THAN
AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY SUCH PURCHASE AND THE SUBSEQUENT HOLDING OF SUCH
CERTIFICATE BY SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED
TRANSACTION PROVISIONS OF SECTION 406 AND 407 OF ERISA, AND SECTION 4975 OF
THE CODE UNDER SECTIONS I AND III OF PTCE 95-60, OR A SUBSTANTIALLY SIMILAR
EXEMPTION UNDER SIMILAR LAW.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER 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.](13)
----------------------------
(1) For Reg S Global Certificates only.
(2) For Rule 144A Global Certificates only.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS S
Class S Pass-Through Rate: 5.330% CUSIP: [_](2) [_]
ISIN: [_](2)[_]
Original Aggregate Certificate Balance of Initial Certificate Balance of
the Class S Certificates: $40,177,872 this Certificate:
[$_________](2) [$0]
First Distribution Date: November 17, 2006 Cut-off Date: The close of
business on the related due date
for each Mortgage Loan occurring
in October 2006
Scheduled Final Distribution Date: No.: S-1
February 15, 2033
This certifies that Cede & Co. is the registered owner of a
beneficial ownership interest in a Trust Fund, including the distributions to
be made with respect to the Class Q Certificates. The Trust Fund, described
more fully below, consists primarily of a pool of Mortgage Loans secured by
first liens on commercial, multifamily and manufactured housing properties
and held in trust by the Trustee and serviced by the applicable Servicer. The
Trust Fund was created, and the Mortgage Loans are to be serviced, pursuant
to the Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class XS, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class T, Class R and
Class LR Certificates (together with the Class S Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 S Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement. Holders of this
Certificate may be entitled to Prepayment Premiums and Yield Maintenance
Charges as provided in the Pooling and Servicing Agreement.
During each Interest Accrual Period (as defined below), interest
on the Class Q Certificates will be calculated based on a 360-day year
consisting of twelve 30-day months on the outstanding Certificate Balance
hereof.
Interest accrued on this Certificate during an Interest Accrual
Period, plus the aggregate unpaid Interest Shortfall with respect to this
Certificate, if any, will be payable on the related Distribution Date to the
extent provided in the Pooling and Servicing Agreement. The "Interest Accrual
Period" means, with respect to any Distribution Date, the calendar month
immediately preceding the month in which such Distribution Date occurs. Each
Interest Accrual Period is assumed to consist of 30 days.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class S
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class S Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
Class S
Schedule A
Remaining Certificate
Certificate Balance Balance of this Notation
Date Exchanged or Transferred Certificate Made By
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
---------- ------------------------------ ------------------------ ----------
EXHIBIT A-28
FORM OF CLASS T CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION
S OR (5) TO A PERSON INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER
(WITHIN THE MEANING OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED) OR AN AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933
ACT, PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B)
IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
TRANSFERS AND EXCHANGES OF PORTIONS OF THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AS PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
BELOW.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH
IS AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
CODE OR ANY GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA 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.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS T
No.: T Percentage Interest: 100%
This certifies that X.X. Xxxxxx Company, Inc. is the registered
owner of a beneficial ownership interest in a Trust Fund, including the
distributions to be made with respect to the Class T Certificates. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial, multifamily and manufactured
housing properties and held in trust by the Trustee and serviced by the
Servicer. The Trust Fund was created, and the Mortgage Loans are to be
serviced, pursuant to the Pooling and Servicing Agreement (as defined below).
The Holder of this Certificate, by virtue of the acceptance hereof, assents
to the terms, provisions and conditions of the Pooling and Servicing
Agreement and is bound thereby. Also issued under the Pooling and Servicing
Agreement are the Class A-1, Class A-1D, Class A-2, Class A-3, Class A-AB,
Class A-4, Class A-5, Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP,
Class B, Class C, Class D, Class E, Class F, Class XS, Class G, Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P, Class Q, Class
S, Class R and Class LR Certificates (together with the Class T Certificates,
the "Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee makes any representation or warranty as to any of the
statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans and the Trustee has executed this
Certificate in its limited capacity as Trustee under the Pooling and
Servicing Agreement.
Pursuant to the terms of the Pooling and Servicing Agreement, the
Trustee, or the Paying Agent on behalf of the Trustee, will distribute (other
than the final distribution on any Certificate), on the tenth day of each
month, or if such day is not a Business Day, the Business Day immediately
following such day, commencing in November 2006 (each such date, a
"Distribution 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 Excess Interest then distributable, if any,
allocable to the Class T Certificates for such Distribution Date, all as more
fully described in the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the benefit of the appropriate non-tendering
Certificateholders. If any Certificates as to which notice of the Termination
Date has been given pursuant to the Pooling and Servicing Agreement shall not
have been surrendered for cancellation within six months after the time
specified in such notice, the Trustee shall mail a second notice to the
remaining non-tendering Certificateholders, at their last addresses shown in
the Certificate Register, to surrender their Certificates for cancellation in
order to receive, from such funds held, the final distribution with respect
thereto. If within one year after the second notice any Certificate shall not
have been surrendered for cancellation, the Trustee 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 maintaining such funds in trust and of contacting such
Certificateholders shall be paid out of such funds. If within two years after
the second notice any Certificates shall not have been surrendered for
cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Bond Trustee shall thereafter
hold such amounts for the benefit of such Holders until the earlier of
(i) its termination as Trustee under the Pooling and Servicing Agreement and
the transfer of such amounts to a successor trustee and (ii) the termination
of the Trust Fund and distribution of such amounts to the Residual
Certificateholders. No interest shall accrue or be payable to any
Certificateholder on any amount held as a result of such Certificateholder's
failure to surrender its Certificate(s) for final payment thereof in
accordance with the Pooling and Servicing Agreement. Such funds held by the
Trustee may be invested under certain circumstances, and all income and gain
realized from investment of such funds shall accrue for its benefit.
This Certificate is limited in right of payment to Excess
Interest, as more specifically set forth herein and in the Pooling and
Servicing Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the Collection Account attributable to the Mortgage Loans as
identified on the Trust Ledger, the Serviced Whole Loan Collection Accounts
(to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate Certificate Balance. Such
Certificates shall be delivered by the Certificate Registrar in accordance
with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates or any class of Serviced Companion Loan Securities by each
Rating Agency; and (iv) to amend or supplement a provision, or to supplement
any other provisions to the extent not inconsistent with the provisions of
the Pooling and Servicing Agreement, or any other change which will not
adversely affect in any material respect the interests of any
Certificateholder or Serviced Companion Loan Noteholder not consenting
thereto, as evidenced in writing by an Opinion of Counsel or, if solely
affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
or Serviced Companion Loan Securities that such amendment will not result in
a qualification, withdrawal or downgrading of the then-current ratings
assigned to the Certificates or any Serviced Companion Loan Securities, as
applicable. In no event shall any such amendment cause the Lower-Tier REMIC
or the Upper-Tier REMIC to fail to qualify as a REMIC or the Grantor Trust to
fail to qualify as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the Servicer, the
Special Servicer and the Trustee with the prior written consent of the
Holders of Certificates representing not less than 66-2/3% of the Percentage
Interests of each Class of Certificates affected thereby and each Serviced
Companion Loan Noteholder affected thereby 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 modifying in any manner the rights
of the Certificateholders or the Serviced Companion Loan Noteholders;
provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of the Servicer
or the Trustee to make a P&I Advance or a Property Advance,
without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise its option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and all property acquired in respect of any
Mortgage Loan, at a purchase price, payable in cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicer as of a date not more than 30 days prior
to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class T
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class T Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-29
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, 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 CODE. A
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY,
AS SET FORTH IN SECTION 5.02(l) OF THE POOLING AND SERVICING AGREEMENT, AND
SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE
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 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, (C) IT HAS
HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE TO
PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (D) IT INTENDS TO PAY ANY
TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. 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. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL
INTEREST", AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), 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 PAY A SPECIFIED AMOUNT TO THE PROPOSED TRANSFEREE OR TRANSFER TO AN
ELIGIBLE TRANSFEREE AS PROVIDED IN REGULATIONS.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
AGREED TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE UPPER-TIER REMIC AND
TO THE APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX
MATTERS PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING
AGREEMENT TO PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF
SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
THE CASE OF THE PRIVATE REGULAR CERTIFICATES, IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON
INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING
OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN
AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT,
PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
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 OTHER PLAN
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 COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE
INVESTED, AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA
OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN. TRANSFEREES OF
THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED TO
DELIVER A LETTER IN THE FORM ATTACHED TO THE POOLING AND SERVICING AGREEMENT
TO SUCH EFFECT.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
CD 2006-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS R
No.: R-1 Percentage Interest: 100%
This certifies that Citigroup Global Markets Inc. is the
registered owner of the Percentage Interest evidenced by this Certificate in
the Trust Fund. The Class R Certificateholder is not entitled to interest or
principal distributions. The Class R Certificateholder will be entitled to
receive the proceeds of the remaining assets of the Upper-Tier REMIC, if any,
on the Final Scheduled Distribution Date for the Certificates, after
distributions in respect of any accrued but unpaid interest on the
Certificates and after distributions in reduction of principal balance have
reduced the principal balances of the Certificates to zero. It is not
anticipated that there will be any assets remaining in the Upper-Tier REMIC
or Trust Fund on the Final Scheduled Distribution Date following the
distributions on the Regular Certificates. The Trust Fund, described more
fully below, consists primarily of a pool of Mortgage Loans secured by first
liens on commercial, multifamily and manufactured housing properties and held
in trust by the Trustee and serviced by the applicable Servicer. The Trust
Fund was created, and the Mortgage Loans are to be serviced, pursuant to the
Pooling and Servicing Agreement (as defined below). The Holder of this
Certificate, by virtue of the acceptance hereof, assents to the terms,
provisions and conditions of the Pooling and Servicing Agreement and is bound
thereby. Also issued under the Pooling and Servicing Agreement are the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E, Class F, Class XS, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S, Class T and
Class LR Certificates (together with the Class R Certificates, the
"Certificates"; the Holders of Certificates issued under the Pooling and
Servicing Agreement are collectively referred to herein as
"Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent
of any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class R
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION
not in its individual capacity but
solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class R Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT A-30
FORM OF CLASS LR CERTIFICATE
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE ORIGINATOR, THE SERVICERS, THE SPECIAL SERVICER, THE TRUSTEE
OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING MORTGAGE LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL
AGENCY OR INSTRUMENTALITY.
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS BENEFICIAL
OWNERSHIP OF A "RESIDUAL INTEREST" IN TWO "REAL ESTATE MORTGAGE INVESTMENT
CONDUITS" AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(a)(2)
AND 860D OF THE CODE. A TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF,
IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS
ON TRANSFERABILITY, AS SET FORTH IN SECTION 5.02(l) OF THE POOLING AND
SERVICING AGREEMENT, AND SHALL BE REQUIRED TO FURNISH AN AFFIDAVIT TO THE
TRANSFEROR AND THE TRUSTEE 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 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, (C) IT
HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND INTENDS TO CONTINUE
TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, AND (D) IT INTENDS TO PAY
ANY TAXES ASSOCIATED WITH HOLDING THIS CERTIFICATE AS THEY BECOME DUE. 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. IF THIS CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL
INTEREST", AS DEFINED IN TREASURY REGULATIONS SECTION 1.860E-1(c), 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 PAY A SPECIFIED AMOUNT TO THE PROPOSED TRANSFEREE OR TRANSFER TO AN
ELIGIBLE TRANSFEREE AS PROVIDED IN REGULATIONS.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE
AGREED TO CONSENT TO ACT AS "TAX MATTERS PERSON" OF THE LOWER-TIER REMIC AND
TO THE APPOINTMENT OF THE TRUSTEE AS ATTORNEY-IN-FACT AND AGENT FOR THE TAX
MATTERS PERSON OR AS OTHERWISE PROVIDED IN THE POOLING AND SERVICING
AGREEMENT TO PERFORM THE FUNCTIONS OF A "TAX MATTERS PARTNER" FOR PURPOSES OF
SUBCHAPTER C OF CHAPTER 63 OF SUBTITLE F OF THE CODE.
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE OR FOREIGN
SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES
THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN COMPLIANCE WITH THE 1933 ACT AND OTHER APPLICABLE LAWS
AND ONLY (A)(1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE 1933 ACT, (2) FOR SO LONG AS THIS CERTIFICATE IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT ("RULE 144A") TO AN
INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A ("QIB"), PURCHASING FOR
ITS OWN ACCOUNT OR A PERSON PURCHASING FOR THE ACCOUNT OF ANOTHER QIB, WHOM
THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN CERTIFICATED
FORM TO AN INSTITUTIONAL "ACCREDITED INVESTOR" AS SUCH TERM IS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE 1933 ACT, (4) IN
THE CASE OF THE PRIVATE REGULAR CERTIFICATES, IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S OR (5) TO A PERSON
INVOLVED IN THE ORGANIZATION OR OPERATION OF THE ISSUER (WITHIN THE MEANING
OF RULE 3a-7 UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED) OR AN
AFFILIATE OF SUCH A PERSON, AS DEFINED IN RULE 405 OF THE 1933 ACT,
PURCHASING THE CERTIFICATES BEING SOLD TO IT FOR ITS OWN ACCOUNT AND (B) IN
ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES.
THIS CERTIFICATE SHOULD NOT BE PURCHASED BY A TRANSFEREE THAT IS (A) AN
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING AN
INDIVIDUAL RETIREMENT ACCOUNT OR A XXXXX PLAN, WHICH IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
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 OTHER PLAN
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 COLLECTIVE INVESTMENT FUND IN WHICH SUCH PLANS ARE
INVESTED, AN INSURANCE COMPANY USING ASSETS OF SEPARATE ACCOUNTS OR GENERAL
ACCOUNTS WHICH INCLUDE ASSETS OF PLANS (OR WHICH ARE DEEMED PURSUANT TO ERISA
OR ANY SIMILAR LAW TO INCLUDE ASSETS OF PLANS) OR OTHER PERSON ACTING ON
BEHALF OF ANY SUCH PLAN OR USING THE ASSETS OF ANY SUCH PLAN. TRANSFEREES OF
THIS CERTIFICATE TAKING DELIVERY IN CERTIFICATED FORM SHALL BE REQUIRED TO
DELIVER A LETTER IN THE FORM ATTACHED TO THE POOLING AND SERVICING AGREEMENT
TO SUCH EFFECT.
ANY HOLDER DESIRING TO EFFECT A TRANSFER OF THIS CERTIFICATE SHALL, AND DOES
HEREBY AGREE TO, INDEMNIFY THE CERTIFICATE REGISTRAR, THE TRUSTEE, THE
SERVICERS AND THE DEPOSITOR AGAINST ANY LIABILITY THAT MAY RESULT IF THE
TRANSFER IS NOT EXEMPT FROM THE 1933 ACT OR IS NOT MADE IN ACCORDANCE WITH
FEDERAL AND STATE LAWS.
CD 2005-CD2 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, CLASS LR
No.: LR-1 Percentage Interest: 100%
This certifies that Citigroup Global Markets Inc. is the
registered owner of the Percentage Interest evidenced by this Certificate in
the Trust Fund. The Class LR Certificateholder is not entitled to interest or
principal distributions. The Class LR Certificateholder will be entitled to
receive the proceeds of the remaining assets of the Lower-Tier REMIC, if any,
on the Final Scheduled Distribution Date for the Certificates, after
distributions in respect of any accrued but unpaid interest on the
Certificates and after distributions in reduction of principal balance have
reduced the principal balances of the Lower-Tier Regular Interests to zero.
It is not anticipated that there will be any assets remaining in the
Lower-Tier REMIC or Trust Fund on the Final Scheduled Distribution Date
following the distributions on the Lower-Tier Regular Interests. The Trust
Fund, described more fully below, consists primarily of a pool of Mortgage
Loans secured by first liens on commercial, multifamily and manufactured
housing properties and held in trust by the Trustee and serviced by the
applicable Servicer. The Holder of this Certificate, by virtue of the
acceptance hereof, assents to the terms, provisions and conditions of the
Pooling and Servicing Agreement and is bound thereby. Also issued under the
Pooling and Servicing Agreement are the Class A-1, Class A-1D, Class A-2,
Class A-3, Class A-AB, Class A-4, Class A-5, Class A-1S, Class A-M, Class
A-J, Class A-1A, Class XP, Class B, Class C, Class D, Class E, Class F, Class
XS, Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O,
Class P Class Q, Class S Class T and Class R Certificates (together with the
Class LR Certificates, the "Certificates"; the Holders of Certificates issued
under the Pooling and Servicing Agreement are collectively referred to herein
as "Certificateholders").
This Certificate is issued pursuant to, and in accordance with,
the terms of a Pooling and Servicing Agreement dated as of October 1, 2006
(the "Pooling and Servicing Agreement"), by and among Deutsche Mortgage &
Asset Receiving Corporation, as Depositor, Capmark Finance Inc., as servicer
(the "Capmark Servicer") with respect to all of the Mortgage Loans other than
the mortgage loans known as the Ala Moan Portfolio Loan and the Fair Lakes
Office Portfolio Loan which are being serviced by Wachovia Bank, National
Association (the "Wachovia Servicer" and collectively with the Capmark
Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer") and LaSalle Bank National Association, as trustee,
(the "Trustee") and Paying Agent. To the extent not defined herein,
capitalized terms used herein shall have the meanings assigned thereto in the
Pooling and Servicing Agreement.
The Trustee 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 and has executed this Certificate in its
limited capacity as Trustee under the Pooling and Servicing Agreement.
All distributions (other than the final distribution on any
Certificate) will be made by the Paying Agent to the persons in whose names
the Certificates are registered at the close of business on each Record Date,
which will be the close of business on the last day of the calendar month
preceding the month in which such Distribution Date occurs or, if such day is
not a Business Day, the preceding Business Day; provided, however, that with
respect to the Distribution Date occurring in April 2006, the Record Date
will be the Closing Date. Such distributions shall be made on each
Distribution Date other than the Termination Date to each Certificateholder
of record on the related Record Date, by wire transfer of immediately
available funds to the account of such Holder at a bank or other entity
located in the United States and having appropriate facilities therefor
provided that such Holder shall have provided the Paying Agent with wire
instructions in writing at least five Business Days prior to the related
Record Date, or, otherwise, by check mailed by first-class mail to the
address set forth therefor in the Certificate Register. The final
distribution on each Certificate shall be made in like manner, but only upon
presentment and surrender of such Certificate at the office of the Trustee or
its agent (which may be the Paying Agent or the Certificate Registrar acting
as such agent) that is specified in the notice to Holders of such final
distribution.
Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall, on such
date, be set aside and held in trust for the benefit of the appropriate
non-tendering Certificateholders. If any Certificates as to which notice of
the Termination Date has been given pursuant to the Pooling and Servicing
Agreement shall not have been surrendered for cancellation within six months
after the time specified in such notice, the Trustee shall mail a second
notice to the remaining non-tendering Certificateholders, at their last
addresses shown in the Certificate Register, to surrender their Certificates
for cancellation in order to receive, from such funds held, 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 Trustee 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. If
within two years after the second notice any such Certificates shall not have
been surrendered for cancellation, the Paying Agent shall pay to the Trustee
all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the
earlier of (i) its termination as Trustee under the Pooling and Servicing
Agreement and the transfer of such amounts to a successor trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to
the Residual Certificateholders. No interest shall accrue or be payable to
any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with the Pooling and Servicing Agreement. Such funds
held by the Trustee may be invested under certain circumstances, and all
income and gain realized from investment of such funds shall accrue for its
benefit.
This Certificate is limited in right of payment to, among other
things, certain collections and recoveries in respect of the Mortgage Loans,
as more specifically set forth herein and in the Pooling and Servicing
Agreement.
As provided in the Pooling and Servicing Agreement, the Trust
Fund includes (i) such Mortgage Loans as from time to time are subject to the
Pooling and Servicing Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in
respect of the Mortgage Loans due after the Cut-off Date; (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) any Assignments of Leases, Rents and Profits
and any security agreements (to the extent of the Trust Fund's interest
therein); (vi) any indemnities or guaranties given as additional security for
any Mortgage Loans (to the extent of the Trust Fund's interest therein);
(vii) all assets deposited in the Lock-Box Accounts, Cash Collateral
Accounts, Escrow Accounts, and Reserve Accounts (to the extent of the Trust
Fund's interest therein), (viii) Loss of Value Reserve Fund amounts on
deposit in the applicable Collection Account attributable to the Mortgage
Loans as identified on the Trust Ledger, the Serviced Whole Loan Collection
Accounts (to the extent of the Trust Fund's interest therein and specifically
excluding any interest of any Serviced Companion Loan Noteholder therein),
the Distribution Accounts, any Excess Liquidation Proceeds Account (to the
extent of the Trust Fund's interest therein and specifically excluding any
interest of any Serviced Companion Loan Noteholder therein), the Interest
Reserve Account, any REO Account (to the extent of the Trust Fund's interest
therein and specifically excluding any interest of any Serviced Companion
Loan Noteholder therein), including any reinvestment income, as applicable;
(ix) any environmental indemnity agreements relating to the Mortgaged
Properties; (x) all insurance policies with respect to the Mortgage Loans and
the Mortgaged Properties (to the extent of the Trust Fund's interest
therein); (xi) the rights and remedies under the Mortgage Loan Purchase
Agreements relating to document delivery requirements with respect to the
Mortgage Loans and the representations and warranties of the related Mortgage
Loan Seller regarding its Mortgage Loans; (xii) the Lower-Tier Regular
Interests; 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 Borrower). As provided in the Pooling and Servicing Agreement,
withdrawals may be made from certain of the above-accounts for purposes other
than distributions to Certificateholders.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement, and reference is made to the Pooling and Servicing
Agreement for the interests, rights, benefits, obligations and duties
evidenced hereby, and the limitations thereon, and the rights, duties and
immunities of the Trustee.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations set forth therein, this Certificate is transferable or
exchangeable only upon surrender of this Certificate to the Certificate
Registrar at its offices together with an assignment and transfer (executed
by the Holder or his duly authorized attorney), subject to the requirements
in Article V of the Pooling and Servicing Agreement. Upon surrender for
registration of transfer of this Certificate, subject to the requirements
Article V of the Pooling and Servicing Agreement, the Trustee shall execute
and the Authenticating Agent shall duly authenticate in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate denomination as the Certificate
being surrendered. Such Certificates shall be delivered by the Certificate
Registrar in accordance with Article V of the Pooling and Servicing Agreement.
Prior to due presentation of this Certificate for registration of
transfer, the Depositor, the Servicers, the Special Servicer, the Trustee,
the Certificate Registrar, any Paying Agent and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Servicers, the
Special Servicer, the Trustee, the Certificate Registrar, any Paying Agent or
any agent of any of them shall be affected by notice or knowledge to the
contrary.
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(h) of that Agreement. 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 in 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.
The Pooling and Servicing Agreement or any Custodial Agreement
may be amended at any time by the Depositor, the Servicers, the Special
Servicer and the Trustee without the consent of any of the Certificateholders
or the Serviced Companion Loan Noteholders, (i) to cure any ambiguity or to
correct any error; (ii) to cause the provisions herein to conform or be
consistent with or in furtherance of the statements made in the Prospectus or
the Private Placement Memorandum, in each case, with respect to the
Certificates, the Trust or the Pooling and Servicing Agreement or to correct
or supplement any provisions herein or therein which may be defective or
inconsistent with any other provisions herein or therein; (iii) to amend any
provision of the Pooling and Servicing Agreement to the extent necessary or
desirable to maintain the rating or ratings assigned to each of the Classes
of Certificates by each Rating Agency; and (iv) to amend or supplement a
provision, or to supplement any other provisions to the extent not
inconsistent with the provisions of the Pooling and Servicing Agreement, or
any other change which will not adversely affect in any material respect the
interests of any Certificateholder or Serviced Companion Loan Noteholder not
consenting thereto, as evidenced in writing by an Opinion of Counsel or, if
solely affecting any Certificateholder or Serviced Companion Loan Noteholder,
confirmation in writing from each Rating Agency then rating any Certificates
that such amendment will not result in a qualification, withdrawal or
downgrading of the then-current ratings assigned to the Certificates. In no
event shall any such amendment cause the Lower-Tier REMIC or the Upper-Tier
REMIC to fail to qualify as a REMIC or the Grantor Trust to fail to qualify
as a grantor trust.
The Pooling and Servicing Agreement or any Custodial Agreement
may also be amended from time to time by the Depositor, the applicable
Servicer, the Special Servicer and the Trustee with the prior written consent
of the Holders of Certificates representing not less than 66-2/3% of the
Percentage Interests of each Class of Certificates affected thereby and each
Serviced Companion Loan Noteholder affected thereby 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 modifying in any manner
the rights of the Certificateholders or the Serviced Companion Loan
Noteholders; provided, however, that no such amendment may:
(i) reduce in any manner the amount of, or delay the timing of,
payments received on the Mortgage Loans which are required
to be distributed on any Certificate, without the consent
of the Holders of Certificates representing all of the
Percentage Interests of the Class or Classes affected
thereby, or which are required to be distributed to any
Serviced Companion Loan Noteholders without the consent of
such Serviced Companion Loan Noteholders;
(ii) change the percentages of Voting Rights of Holders of
Certificates which are required to consent to any action or
inaction under the Pooling and Servicing Agreement;
(iii) alter the Servicing Standard or obligations of either
Servicer or the Trustee to make a P&I Advance or a Property
Advance, without the consent of the Holders of Certificates
representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section of the Pooling and Servicing Agreement
which relates to the amendment of the Pooling and Servicing
Agreement without the consent of the Holders of all
Certificates representing all of the Percentage Interests
of the Class or Classes affected thereby and the consent of
any affected Serviced Companion Loan Noteholders.
Further, the Depositor, the Servicers, the Special Servicer and
the Trustee, at any time and from time to time, without the consent of the
Certificateholders or, if applicable, the Serviced Companion Loan
Noteholders, may amend the Pooling and Servicing Agreement to modify,
eliminate or add to any of its provisions to such extent as shall be
necessary to maintain the qualification of the Lower-Tier REMIC or the
Upper-Tier REMIC as a REMIC or the qualification of the Grantor Trust as a
Grantor Trust, or to prevent the imposition of any additional material state
or local taxes, at all times that any Certificates are outstanding; provided,
that such action, as evidenced by an Opinion of Counsel (obtained at the
expense of the Trust Fund), is necessary or helpful to maintain such
qualification or to prevent the imposition of any such taxes, and would not
adversely affect in any material respect the interest of any
Certificateholder or, if applicable, any Serviced Companion Loan Noteholder.
The Certificateholder owning a majority of the Percentage
Interests in the Controlling Class and, if no such Certificateholder
exercises such option, the Capmark Servicer, and if the Capmark Servicer does
not exercise such option, the Wachovia Servicer, and if the Wachovia Servicer
does not exercise such option, the Special Servicer, may effect an early
termination of the Trust Fund, upon not less than 30 days' prior Notice of
Termination given to the Trustee, the Special Servicer and the Servicers any
time on or after the Early Termination Notice Date (defined as any date as of
which the aggregate Stated Principal Balance of the Mortgage Loans is less
than 1.0% of the aggregate Stated Principal Balance of the Mortgage Loans as
of the Cut-off Date) specifying the Anticipated Termination Date, by
purchasing on such date all, but not less than all, of the Mortgage Loans
then included in the Trust Fund, and the Trust's interest in all property
acquired in respect of any Mortgage Loan, at a purchase price, payable in
cash, equal to the greater of:
(i) the sum of
(A) 100% of the Stated Principal Balance of each Mortgage
Loan included in the Trust Fund as of the last day of
the month preceding such Anticipated Termination Date
(less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included
in the Trust Fund as of the last day of the month
preceding such Anticipated Termination Date, as
determined by an Independent appraiser acceptable to
the Servicers as of a date not more than 30 days
prior to the last day of the month preceding such
Distribution Date;
(C) all unpaid interest accrued on the unpaid balance of
each Mortgage Loan (including any Mortgage Loan as to
which title to the related Mortgaged Property has
been acquired) at the Mortgage Rate to the last day
of the month preceding such Anticipated Termination
Date (less any P&I Advances previously made on
account of interest); and
(D) the aggregate amount of unreimbursed Advances, with
interest thereon at the Advance Rate, and unpaid
Servicing Compensation, Special Servicing
Compensation, Trustee Fees and Trust Fund expenses;
and
(ii) the aggregate fair market value of the Mortgage Loans, and
all other property acquired in respect of any Mortgage Loan
in the Trust Fund, on the last day of the month preceding
such Anticipated Termination Date, as determined by an
Independent appraiser acceptable to the Servicers as of a
date not more than 30 days prior to the last day of the
month preceding such Distribution Date, together with one
month's interest thereon at the Mortgage Rate.
In addition, the Pooling and Servicing Agreement provides that
following the date on which the aggregate Certificate Balance of the Class
A-1, Class A-1D, Class A-2, Class A-3, Class A-AB, Class A-4, Class A-5,
Class A-1S, Class A-M, Class A-J, Class A-1A, Class XP, Class B, Class C,
Class D, Class E and Class F Certificates is reduced to zero, the Sole
Certificateholder shall have the right to exchange all of its Certificates
(other than the Class T, Class R and Class LR Certificates), including the
Class XS and Class XP Certificates, for all of the Mortgage Loans and each
REO Property (or the Trust Fund's beneficial interest in a Mortgaged Property
acquired with respect to a Non-Serviced Mortgage Loan) remaining in the Trust
Fund as contemplated by clause (ii) of Section 9.01(a) and Section 9.01(g) of
the Pooling and Servicing Agreement by giving written notice to all the
parties to the Pooling and Servicing Agreement no later than 60 days prior to
the anticipated date of exchange.
All costs and expenses incurred by any and all parties to the
Pooling and Servicing Agreement or by the Trust Fund in connection with the
purchase of the Mortgage Loans and the other assets of the Trust Fund
pursuant to Section 9.01(c) of the Pooling and Servicing Agreement shall be
borne by the party exercising its purchase rights thereunder. The Trustee
shall be entitled to rely conclusively on any determination made by an
Independent appraiser pursuant to Section 9.01(c) of the Pooling and
Servicing Agreement.
The respective obligations and responsibilities of the applicable
Servicer, the Special Servicer, the Depositor and the Trustee created by the
Pooling and Servicing Agreement with respect to the Certificates (other than
the obligations of the Trustee to make certain payments and to send certain
notices to Certificateholders as thereinafter set forth) shall terminate upon
payment (or provision for payment) to the Certificateholders and the Serviced
Companion Loan Noteholders of all amounts held by or on behalf of the Trustee
and applicable Servicer, as the case may be, required under the Pooling and
Servicing Agreement to be so paid on the Distribution Date following the
earlier to occur of (i) the purchase of the Mortgage Loans and all other
property held by the Trust Fund in accordance with Section 9.01(c) of the
Pooling and Servicing Agreement; (ii) the exchange by the Sole
Certificateholder of its Certificates for the Mortgage Loans in accordance
with Section 9.01(g) of the Pooling and Servicing Agreement; and (iii) the
later of (a) the receipt or collection of the last payment due on any
Mortgage Loan included in the Trust Fund, or (b) the liquidation and
disposition pursuant to the Pooling and Servicing Agreement of the last asset
held by the Trust Fund; provided, however, that in no event shall 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 United Kingdom,
living on the date hereof.
Unless the Certificate of Authentication on this Certificate has
been executed by the Trustee or on its behalf 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.
IN WITNESS WHEREOF, the Trustee has caused this Class LR
Certificate to be duly executed.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION,
N.A., not in its individual capacity
but solely as Trustee
By:____________________________________
Authorized Signatory
Certificate of Authentication
-----------------------------
This is one of the Class LR Certificates referred to in the
Pooling and Servicing Agreement.
Dated: October 30, 2006
LASALLE BANK NATIONAL ASSOCIATION, not
in its individual capacity but solely
as Authenticating Agent
By:____________________________________
Authorized Signatory
EXHIBIT B-1
MORTGAGE LOAN SCHEDULE
EXHIBIT B-2
SERVICING FEE RATE SCHEDULE
EXHIBIT C-1
FORM OF TRANSFEREE AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE OF
1986, AS AMENDED
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
________________________, being first duly sworn, deposes and says:
1. That he/she is a _______________ of ______________ (the
"Purchaser"), a __________________ duly organized and existing under the laws of
the State of on behalf of which he/she makes this affidavit.
2. That the Purchaser's Taxpayer Identification Number is _________.
3. That the Purchaser of the Commercial Mortgage Pass-Through
Certificates, CD 2006-CD3, Class [R] [LR] (the "Class [R] [LR] Certificate") is
a Permitted Transferee (as defined in Article I of the Pooling and Servicing
Agreement dated as of October 1, 2006 (the "Pooling and Servicing Agreement"),
entered into by Deutsche Mortgage & Asset Receiving Corporation, as depositor,
Capmark Finance Inc., as servicer, with respect to all of the Mortgage Loans
other than Ala Moana Portfolio loan and the Fair Lakes Office Portfolio Loan to
the Depositor, Wachovia Bank, National Association, as servicer, with respect to
the Ala Moana Portfolio loan and the Fair Lakes Office Portfolio Loan, X.X.
Xxxxxx Company, Inc., as special servicer and LaSalle Bank National Association,
as trustee and paying agent, or is acquiring the Class [R] [LR] Certificate for
the account of, or as agent (including as a broker, nominee, or other middleman)
for, a Permitted Transferee and has received from such person or entity an
affidavit substantially in the form of this affidavit.
4. That the Purchaser 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
Purchaser intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Purchaser 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 Purchaser will not transfer the Class [R] [LR]
Certificate to any person or entity from which the Purchaser has not received an
affidavit substantially in the form of this affidavit or as to which the
Purchaser has actual knowledge that the requirements set forth in paragraph 3,
paragraph 4 or paragraph 7 hereof are not satisfied or that the Purchaser has
reason to know does not satisfy the requirements set forth in paragraph 4
hereof.
7. That the Purchaser is not a Disqualified Non-U.S. Person and is
not purchasing the Class [R] [LR] Certificate for the account of, or as an agent
(including as a broker, nominee or other middleman) for, a Disqualified Non-U.S.
Person.
8. That the Purchaser agrees to such amendments of 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," an agent thereof, or a person that does not satisfy the
requirements of paragraph 4, paragraph 7 and paragraph 11 hereof.
9. That, if a "tax matters person" is required to be designated with
respect to the [the Upper-Tier REMIC] [the Lower-Tier REMIC and the Villas
Parkmerced Loan REMIC], the Purchaser agrees to act as "tax matters person" and
to perform the functions of "tax matters partner" of the [the Upper-Tier REMIC]
[the Lower-Tier REMIC and the Villas Parkmerced Loan REMIC] pursuant to Section
4.04 of the Pooling and Servicing Agreement, and agrees to the irrevocable
designation of the Trustee as the Purchaser's agent in performing the function
of "tax matters person" and "tax matters partner."
10. The Purchaser agrees to be bound by and to abide by the
provisions of Section 5.02 of the Pooling and Servicing Agreement concerning
registration of the transfer and exchange of the Class [R] [LR] Certificate.
11. The Purchaser agrees not to transfer the Class [R] [LR]
Certificate such that the income therefrom would be attributable to a foreign
permanent establishment or fixed base, within the meaning of an applicable
income tax treaty, of the Purchaser or any other U.S. Person.
12. Check the applicable paragraph:
[_] The present value of the anticipated tax liabilities associated with
holding the Class [R] [LR] Certificate, as applicable, does not
exceed the sum of:
(i) the present value of any consideration given to the Purchaser
to acquire such Class [R] [LR] Certificate;
(ii) the present value of the expected future distributions on such
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 Purchaser 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 Purchaser 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 Purchaser.
[_] The transfer of the Class [R] [LR] Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and,
accordingly,
(i) the Purchaser is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the 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
Purchaser's two fiscal years preceding the year of the
transfer, the Purchaser had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Purchaser within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Purchaser 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 Sections
1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5)
of the U.S. Treasury Regulations; and
(iv) the Purchaser 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 Purchaser) that it has determined in good
faith.
[_] None of the above.
Capitalized terms used but not defined herein have the respective
meanings ascribed to such terms in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
executed on its behalf by its __________________________________ this ____ day
of _______, 20___.
[Purchaser]
By: ______________________________________
Name:
Title:
Personally appeared before me the above-named
____________________________ , known or proved to me to be the same person who
executed the foregoing instrument and to be the______________________________ of
the Purchaser, 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 Purchaser.
Subscribed and sworn before me this ___ day of _______, 20___.
__________________________________
NOTARY PUBLIC
COUNTY OF ____________________________
STATE OF _______________________________
My commission expires the _________ day of ______________, 200 .
EXHIBIT C-2
FORM OF TRANSFEROR LETTER
[Date]
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
Re: Commercial Mortgage Pass-Through Certificates, CD 2006-CD3, Class
[R][LR]
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true or that [Transferee]
is not a Permitted Transferee (as defined in the Pooling and Servicing Agreement
defined in the attached affidavit) and has no actual knowledge or reason to know
that the information contained in paragraphs 4, 7 and 11 thereof is not true.
Very truly yours,
[Transferor]
By: _______________________________________
Name:
Title:
EXHIBIT D-1
FORM OF INVESTMENT REPRESENTATION LETTER
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
Deutsche Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Transfer of Commercial Mortgage Pass-Through Certificates,
CD 2006-CD3: Class [XS][G][H][J][K][L][M][N][O]
[P][Q][S][T][R][LR]
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of October 1, 2006 (the "Pooling and Servicing
Agreement"), entered into by Deutsche Mortgage & Asset Receiving Corporation, as
depositor, Capmark Finance, Inc., as the servicer with respect to all of the
Mortgage Loans other than the Ala Moana Portfolio Loan and the Fair Lakes Office
Portfolio Loan to the Depositor (the "Capmark Servicer"), Wachovia Bank,
National Association, as the servicer with respect to the Ala Moana Portfolio
Loan and the Fair Lakes Office Portfolio Loan (the "Wachovia Servicer" and
collectively, with the Capmark Servicer, the "Servicers"), X.X. Xxxxxx Company,
Inc., as special servicer (the "Special Servicer"), and LaSalle Bank National
Association, as trustee (the "Trustee") and paying agent, on behalf of the
holders of Commercial Mortgage Pass-Through Certificates, CD 2006-CD3 (the
"Certificates") in connection with the transfer by (the "Seller") to the
undersigned (the "Purchaser") of [$___ aggregate Certificate Balance][_%
Percentage Interest] of Class [XS][G][H][J][K][L][M][N][O][P][Q][S][T][R][LR]
Certificates, in certificated fully registered form (such registered interest,
the "Certificate"). Terms used but not defined herein shall have the meanings
ascribed thereto in the Pooling and Servicing Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
[For Institutional Accredited Investors only] 1. The Purchaser is an
institutional investor and an "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 "1933 Act")) and has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of the investment in the Certificate, and we and any accounts
for which we are acting are each able to bear the economic risk of our or its
investment. The Purchaser is acquiring the Certificate 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 for any costs
incurred by it in connection with this transfer.
[For Qualified Institutional Buyers only] 1. 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 "1933 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.
[For Affiliated Persons only]. 1. The Purchaser is a person involved
in the organization or operation of the issuer or an affiliate of such a person,
as defined in Rule 405 of the Securities Act of 1933, as amended (the "1933
Act").
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, or (ii) institutional
"accredited investors" meeting the requirements of Rule 501(a)(1), (2), (3) or
(7) of Regulation D promulgated under the 1933 Act, pursuant to any other
exemption from the registration requirements of the 1933 Act, subject in the
case of this clause (ii) to (a) the receipt by the Certificate Registrar of a
letter substantially in the form hereof, (b) 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 1933 Act, (c)
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 1933 Act and other applicable laws, and (d) a written
undertaking to reimburse the Trust for any costs incurred by it in connection
with the proposed transfer. It understands that the Certificate (and any
subsequent Individual Certificate) has not been registered under the 1933 Act,
by reason of a specified exemption from the registration provisions of the 1933
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 acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 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.
4. The Purchaser has reviewed the Private Placement Memorandum dated
October 23, 2006 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.
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
an Individual 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, 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" 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 Certificate Registrar (or its agent) with respect to
Distributions to be made on the Certificate(s). 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(s) and states that such Purchaser is not a U.S.
Person, (ii) two duly executed copies of IRS Form W-8IMY (and all
appropriate attachment 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(s) and state that interest
and original issue discount on the U.S. Securities 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
for U.S. federal income tax purposes, a corporation, 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 or any of its political
subdivisions, an estate the income of which is subject to U.S. federal income
taxation 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 United States fiduciaries 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).
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:
Account number:________________________
Institution:___________________________
(b) by mailing a check or draft to the following address:
________________________________________________
________________________________________________
________________________________________________
Very truly yours,
_____________________________________________
[The Purchaser]
By:__________________________________________
Name:
Title:
Dated:
----------
* Delete for Class R and Class LR.
** Only to be filled out by Purchasers of Individual Certificates. Please
select (a) or (b).
EXHIBIT D-2
FORM OF ERISA REPRESENTATION LETTER
[Date]
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
Deutsche Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Re: Commercial Mortgage Pass-Through Certificates, CD 2006-CD3, Class
[L][M][N][O][P][Q][S][T][R][LR]
Ladies and Gentlemen:
____________________________ (the "Purchaser") intends to purchase
from (the "Seller") $ initial Certificate Balance or % Percentage Interest of
Commercial Mortgage Pass-Through Certificates, CD 2006-CD3, Class
[L][M][N][O][P][Q][S][T][R][LR], CUSIP No. [_________] (the "Certificates"),
issued pursuant to the Pooling and Servicing Agreement dated as of October 1,
2006 (the "Pooling and Servicing Agreement"), entered into by Deutsche Mortgage
& Asset Receiving Corporation, as depositor, Capmark Finance, Inc., as the
servicer with respect to all of the Mortgage Loans other than the Ala Moana
Portfolio Loan and the Fair Lakes Office Portfolio Loan to the Depositor (the
"Capmark Servicer"), Wachovia Bank, National Association, as the servicer with
respect to the Ala Moana Portfolio Loan and the Fair Lakes Office Portfolio Loan
(the "Wachovia Servicer" and collectively, with the Capmark Servicer, the
"Servicers"), X.X. Xxxxxx Company, Inc., as special servicer (the "Special
Servicer"), and LaSalle Bank National Association, as trustee (the "Trustee").
All capitalized terms used herein and not otherwise defined shall have the
meaning set forth in the Pooling and Servicing Agreement. The Purchaser hereby
certifies, represents and warrants to, and covenants with, the Depositor, the
Certificate Registrar and the Trustee that:
1. The Purchaser is not (a) an employee benefit plan or other
retirement arrangement, including an individual retirement account or a Xxxxx
plan, which is subject to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), Section 4975 of the Code, a governmental plan, as defined
in Section 3(32) of ERISA, or other plan 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 collective investment
fund in which such Plans are invested, an insurance company using assets of
separate accounts or general accounts which include assets of Plans (or which
are deemed pursuant to ERISA or any Similar Law to include assets of Plans) or
other Person acting on behalf of any such Plan or using the assets of any such
Plan, other than (except in the case of the Class T, Class R and Class LR
Certificates) an insurance company using the assets of its general account under
circumstances whereby such purchase and the subsequent holding of such
Certificate by such insurance company would be exempt from the prohibited
transaction provisions of Section 406 and 407 of ERISA and Section 4975 of the
Code under Sections I and III of PTCE 95-60, or a substantially similar
exemption under Similar Law; and
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or 1(b) above, except in the case of the Class T, Class R or
Class LR Certificates, which may not be transferred unless the transferee
represents it is not such a Person, such Purchaser is required to provide to the
Depositor, the Trustee and the Certificate Registrar any Opinions of Counsel,
officers' certificates or agreements as may be required by such Persons, and
which establishes to the satisfaction of the Depositor, the Trustee and the
Certificate Registrar that the purchase and holding of the Certificates by or on
behalf of a Plan will not constitute or result in a non-exempt prohibited
transaction within the meaning of Section 406 and Section 407 of ERISA or
Section 4975 of the Code or any corresponding provision of any Similar Law, and
will not subject the Depositor, the Trustee, the Servicers, the Special Servicer
or the Certificate Registrar to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or Similar
Law), which Opinions of Counsel, officers' certificates or agreements shall not
be at the expense of the Servicers, the Depositor, the Trustee or the
Certificate Registrar.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on this ____ day of _________, 20___.
Very truly yours,
[Purchaser]
By:____________________________________
Name:
Title:
EXHIBIT E
REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
Re: Commercial Mortgage Pass-Through Certificates, CD 2006-CD3
Dear __________________:
In connection with the administration of the Mortgage Files held by,
or on behalf of, you as Custodian under a certain Pooling and Servicing
Agreement, dated as of October 1, 2006 (the "Pooling and Servicing Agreement"),
entered into by LaSalle Bank National Association, as trustee and paying agent,
Deutsche Mortgage & Asset Receiving Corporation, as depositor, Capmark Finance
Inc., as the servicer with respect to all of the Mortgage Loans other than the
Mortgage Loans known as the Ala Moana Portfolio and the Fair Lakes Office
Portfolio Loan (the "Capmark Servicer"), Wachovia Bank, National Association, as
the servicer with respect to the Mortgage Loans known as the Ala Moana Portfolio
and the Fair Lakes Office Portfolio Loan (the "Wachovia Servicer" and
collectively, with the Capmark Servicer, the "Servicers") and X.X. Xxxxxx
Company, Inc., as special servicer (the "Special Servicer") the undersigned
hereby requests a release of the Mortgage File (or the portion thereof specified
below) held by you as Custodian 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. Such [Capmark Servicer]
[Wachovia Servicer] [Special Servicer] hereby certifies that all amounts
received in connection with the Mortgage Loan have been or will be, following
such [Capmark Servicer's] [Wachovia Servicer's] [Special Servicer's] release of
the Mortgage File, credited to the 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 meaning
ascribed to them in the Pooling and Servicing Agreement.
[CAPMARK SERVICER] [WACHOVIA SERVICER]
[SPECIAL SERVICER]
By:______________________________________
Name:_________________________________
Title:________________________________
cc: LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
EXHIBIT F
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 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) (OTHER THAN WITH RESPECT TO 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) 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 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 TWO PAGES 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 D-1 TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR (OTHER THAN WITH RESPECT TO 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.
EXHIBIT G
FORM OF REGULATION S TRANSFER CERTIFICATE
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
Re: Transfer of CD 2006- CD3, Commercial Mortgage Pass-Through
Certificates, Class [__]
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.02 of the
Pooling and Servicing Agreement dated as of October 1, 2006 (the "Pooling and
Servicing Agreement"), entered into by Deutsche Mortgage & Asset Receiving
Corporation, as depositor, Capmark Finance Inc., as the servicer with respect to
all of the Mortgage Loans other than the Mortgage Loans known as the Ala Moana
Portfolio and the Fair Lakes Office Portfolio Loan (the "Capmark Servicer"),
Wachovia Bank, National Association, as the servicer with respect to the
Mortgage Loans known as the Ala Moana Portfolio and the Fair Lakes Office
Portfolio Loan (the "Wachovia Servicer" and collectively, with the Capmark
Servicer, the "Servicers") and X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer"), and LaSalle Bank National Association, as trustee (the
"Trustee") and paying agent, on behalf of the holders of the CD 2006-CD3,
Commercial Mortgage Pass-Through Certificates, Class [___] (the "Certificates")
in connection with the transfer by the undersigned (the "Transferor") to
______________ (the "Transferee") of $___________________ Certificate Balance of
Certificates, in fully registered form (each, an "Individual Certificate"), or a
beneficial interest of such aggregate Certificate Balance in the Regulation S
Global Certificate (the "Global 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;]*
[(2) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither there 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 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 Servicers and
the Special Servicer.
______________________________________
Transferor
By:___________________________________
Name:
Title:
Dated: ________________, 20__
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT H
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE DURING THE RESTRICTED PERIOD
(Exchanges or transfers pursuant to Section 5.02(c)(ii)(A) of
the Pooling and Servicing Agreement)
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
Re: Transfer of CD 2006-CD3 Commercial Mortgage Pass-Through
Certificates, Class [__]
Reference is hereby made to the Pooling and Servicing Agreement
dated as of October 1, 2006, (the "Pooling and Servicing Agreement"), entered
into by Deutsche Mortgage & Asset Receiving Corporation, as depositor, Capmark
Finance Inc., as the servicer with respect to all of the Mortgage Loans other
than the Mortgage Loans known as the Ala Moana Portfolio and the Fair Lakes
Office Portfolio Loan (the "Capmark Servicer"), Wachovia Bank, National
Association, as the servicer with respect to the Mortgage Loans known as the Ala
Moana Portfolio and the Fair Lakes Office Portfolio Loan (the "Wachovia
Servicer" and collectively, with the Capmark Servicer, the "Servicers") and X.X.
Xxxxxx Company, Inc., as special servicer (the "Special Servicer"), and LaSalle
Bank National Association, as trustee (the "Trustee") and paying agent.
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 of Certificates (the "Certificates") which are held in the form of Rule
144A Global 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 Global Certificate (CUSIP No. ____________) to be held with
[Euroclear] [Clearstream]* (Common Code) 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,
----------
* Select appropriate depositary.
[(2) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any persons acting on its behalf
reasonably believed that the Transferee was outside the United States,]**
[(2) 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 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.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicers and
the Special Servicer.
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated: ________________________, 20__
----------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT I
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RULE 144A
GLOBAL CERTIFICATE TO REGULATION S GLOBAL
CERTIFICATE AFTER THE RESTRICTED PERIOD
(Exchange or transfers pursuant to
Section 5.02(c)(ii)(B) of the Pooling and Servicing Agreement)
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
Attention: Corporate Trust Services, CD 2006-CD3
Re: Transfer of CD 2006-CD3 Commercial Mortgage Pass-Through
Certificates Class [__]
Reference is hereby made to the Pooling and Servicing Agreement
dated as of October 1, 2006 (the "Pooling and Servicing Agreement"), entered
into by Deutsche Mortgage & Asset Receiving Corporation, as depositor, Capmark
Finance Inc., as the servicer with respect to all of the Mortgage Loans other
than the Mortgage Loans known as the Ala Moana Portfolio and the Fair Lakes
Office Portfolio Loan (the "Capmark Servicer"), Wachovia Bank, National
Association, as the servicer with respect to the Mortgage Loans known as the Ala
Moana Portfolio and the Fair Lakes Office Portfolio Loan (the "Wachovia
Servicer" and collectively, with the Capmark Servicer, the "Servicers") and X.X.
Xxxxxx Company, Inc., as special servicer (the "Special Servicer"), and LaSalle
Bank National Association, as trustee (the "Trustee") and paying agent.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
The letter relates to U.S. $[_____________] aggregate Certificate
Balance of Certificates (the "Certificates") which are held in the form of the
Rule 144A Global 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 Global 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,]*
[(2) 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 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 Servicers and
the Special Servicer.
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated: _______________, 20___
----------
* Insert one of these two provisions, which come from the definition of
"offshore transaction" in Regulation S.
EXHIBIT J
FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM REGULATION S GLOBAL
CERTIFICATE TO RULE 144A GLOBAL CERTIFICATE
(Exchange or transfers pursuant to Section 5.02(c)(ii)(C)
of the Pooling and Servicing Agreement)
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
Re: Transfer of CD 2006-CD3 Commercial Mortgage Pass-Through
Certificates, Class [__]
Reference is hereby made to the Pooling and Servicing Agreement
dated as of October 1, 2006 (the "Pooling and Servicing Agreement"), entered
into by Deutsche Mortgage & Asset Receiving Corporation, as depositor, Capmark
Finance Inc., as the servicer with respect to all of the Mortgage Loans other
than the Mortgage Loans known as the Ala Moana Portfolio and the Fair Lakes
Office Portfolio Loan (the "Capmark Servicer"), Wachovia Bank, National
Association, as the servicer with respect to the Mortgage Loans known as the Ala
Moana Portfolio and the Fair Lakes Office Portfolio Loan (the "Wachovia
Servicer" and collectively, with the Capmark Servicer, the "Servicers") and X.X.
Xxxxxx Company, Inc., as special servicer (the "Special Servicer"), and LaSalle
Bank National Association, as trustee (the "Trustee") and paying agent.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
This letter relates to U.S. $[____________] aggregate Certificate
Balance of Certificates (the "Certificates") which are held in the form of the
Regulation S Global Certificate (CUSIP No. ____________) with [Euroclear]
[Clearstream]* (Common Code _________) 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 Global 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 "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 an jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicers and
the Special Servicer.
[Insert Name of Transferor]
By:______________________________________
Name:
Title:
Dated: ______________, 20__
----------
* Select appropriate depository.
EXHIBIT K
FORM OF DISTRIBUTION DATE STATEMENT
EXHIBIT L
FORM OF INVESTOR CERTIFICATION
Dated:
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
Re: Commercial Mortgage Pass-Through Certificates, Series CD 2006-CD3
In accordance with the Pooling and Servicing Agreement, dated as of
October 1, 2006 (the "Agreement"), entered into by Deutsche Mortgage & Asset
Receiving Corporation, as depositor, Capmark Finance Inc., as the servicer with
respect to all of the Mortgage Loans other than the Mortgage Loans known as the
Ala Moana Portfolio and the Fair Lakes Office Portfolio Loan (the "Capmark
Servicer"), Wachovia Bank, National Association, as the servicer with respect to
the Mortgage Loans known as the Ala Moana Portfolio and the Fair Lakes Office
Portfolio Loan (the "Wachovia Servicer" and collectively, with the Capmark
Servicer, the "Servicers") and X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer"), and LaSalle Bank National Association, as trustee (the
"Trustee") and paying agent with respect to the above-referenced certificates
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of
the Class __ Certificates.
2. The undersigned is requesting access to the Trustee's internet
website containing certain information (the "Information") and/or is requesting
the information identified on the schedule attached hereto (also, the
"Information") pursuant to the provisions of the Agreement.
3. In consideration of the Trustee's disclosure to the undersigned
of the Information, or access thereto, the undersigned will keep the Information
confidential (except from such outside persons as are assisting it in making an
evaluation in connection with purchasing the related Certificates, from its
accountants and attorneys, and otherwise from such governmental or banking
authorities or agencies to which the undersigned is subject), and such
Information will not, without the prior written consent of the Trustee, be
otherwise disclosed by the undersigned or by its officers, directors, partners,
employees, agents or representatives (collectively, the "Representatives") in
any manner whatsoever, in whole or in part.
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 of the Securities Exchange Act of
1934, as amended, or would require registration of any Certificate pursuant to
Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Servicers, the Special Servicer, the Trustee and the Trust Fund
for any loss, liability or expense incurred thereby with respect to any such
breach by the undersigned or any of its Representatives.
6. Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto 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.
_______________________________________
[Certificate Owner or Prospective
Purchaser]
By:____________________________________
Title:_________________________________
Company:_______________________________
Phone:
EXHIBIT M
FORM OF SUB-SERVICER BACKUP CERTIFICATION
CD 2006-CD3 Mortgage Trust (the "Trust")
As contemplated by Section 10.08 of that certain pooling and
servicing agreement dated as of October 1, 2006 (the "Pooling and Servicing
Agreement"), entered into by Deutsche Mortgage & Asset Receiving Corporation, as
depositor (the "Depositor"), Capmark Finance Inc., as the servicer with respect
to all of the Mortgage Loans other than the Mortgage Loans known as the Ala
Moana Portfolio and the Fair Lakes Office Portfolio Loan (the "Capmark
Servicer"), Wachovia Bank, National Association, as the servicer with respect to
the Mortgage Loans known as the Ala Moana Portfolio and the Fair Lakes Office
Portfolio Loan (the "Wachovia Servicer" and collectively, with the Capmark
Servicer, the "Servicers") and X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer"), and LaSalle Bank National Association, as trustee (the
"Trustee") and paying agent, [identify the certifying individual], a
[_______________ ] of [_____], a [_____] corporation (the "Sub-Servicer") as
Sub-Servicer in connection with the sub-servicing of one or more Mortgage Loans
and/or Serviced Whole Loans under the Pooling and Servicing Agreement, on behalf
of the Sub-Servicer, certify to [Name of Each Certifying Person for
Xxxxxxxx-Xxxxx Certification], the Depositor, the Servicers, the Trustee and
their officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification, that:
(i) Based on our knowledge, with respect to the period ending
December 31, 20[__] (the "Relevant Period"), all servicing
information and all reports required to be submitted by the
Sub-Servicer to the Trustee pursuant to the Pooling and Servicing
Agreement (the "Servicer Reports") for inclusion in the annual
report on Form 10-K for the Relevant Period and inclusion in all
reports on Form 8-K have been submitted by the Sub-Servicer to the
Trustee for inclusion in these reports;
(ii) Based on our knowledge, with respect to the Relevant Period,
all servicing information and all reports required to be submitted
by the Sub-Servicer to the [Capmark Master Servicer] [Wachovia
Master Servicer] pursuant to the sub-servicing agreement between the
Sub-Servicer and the [Capmark Master Servicer] [Wachovia Master
Servicer] (the "Sub-Servicer Reports") have been submitted by the
Sub-Servicer to the [Capmark Master Servicer] [Wachovia Master
Servicer];
(iii) Based on our knowledge, the information contained in the
Servicer Reports and Sub-Servicer Reports, taken as a whole, does
not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not
misleading as of the last day of the period ending December 31,
20[__];
(iv) Based upon our knowledge and the annual compliance review
performed as required under Section [__] of the Sub-Servicing
Agreement, and except as disclosed in the compliance certificate
delivered pursuant to Section [__] of the Sub-Servicing Agreement,
the Sub-Servicer has fulfilled its obligations under the
Sub-Servicing Agreement in all material respects;
(v) [I am responsible for reviewing the activities performed by the
Sub-Servicer under the Sub-Servicing Servicing Agreement and based
upon my knowledge and the annual compliance reviews conducted in
preparing the servicer compliance statements for inclusion on Form
10-K pursuant Item 1123 of Regulation AB with respect to the
Sub-Servicer, and except as disclosed in the compliance certificate
delivered by the Sub-Servicer under Section [__] of the
Sub-Servicing Servicing Agreement, the Sub-Servicer has fulfilled
its obligations under the Sub-Servicing Servicing Agreement in all
material respects];
(vi) I have disclosed to the accountants that are to deliver the
annual attestation report on assessment of compliance with the
Relevant Servicing Criteria in respect of the Sub-Servicer with
respect to the Trust's fiscal year _____ all information relating to
the Sub-Servicer's assessment of compliance with the Relevant
Servicing Criteria, in order to enable them to conduct a review in
compliance with the standards for attestation engagements issued or
adopted by the PCAOB; and
(vii) All annual assessment reports required under Section [__] of
the Sub-Servicing Agreement and their related annual attestation
reports required to be provided to the [Capmark Master Servicer]
[Wachovia Master Servicer], the Trustee and the Depositor by the
Sub-Servicer or any Servicing Function Participant retained by the
Sub-Servicer under or as contemplated by the Pooling and Servicing
Agreement and the Sub-Servicing Agreement have been provided
thereby. Based on my knowledge, all material instances of
noncompliance with the Relevant Servicing Criteria have been
disclosed in such reports, in each case based upon the annual
attestation report provided by a registered public accounting firm,
after conducting a review in compliance with the standards for
attestation engagements issued or adopted by the PCAOB, delivered
pursuant to Section [__]of the Sub-Servicing Agreement.
Capitalized terms used but not defined herein have the meanings set forth in the
Sub-Servicing Agreement or, if not defined in the Sub-Servicing Agreement, then
the meanings set forth in the Pooling and Servicing Agreement.
Date: _________________________
[NAME OF SUB-SERVICER]
By: ___________________________
Name:
Title:
EXHIBIT N
FORM OF PURCHASE OPTION NOTICE
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Wachovia Bank, National Association
NC 1075, 0000 Xxxxxxxx Xxxxx XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
Re: CD 2006-CD3, Commercial Mortgage Pass-Through Certificates
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 (the "Pooling and Servicing Agreement") dated as of October 1, 2006,
entered into by Deutsche Mortgage & Asset Receiving Corporation, as depositor
(the "Depositor"), Capmark Finance Inc., as the servicer with respect to all of
the Mortgage Loans other than the Mortgage Loans known as the Ala Moana
Portfolio and the Fair Lakes Office Portfolio Loan (the "Capmark Servicer"),
Wachovia Bank, National Association, as the servicer with respect to the
Mortgage Loans known as the Ala Moana Portfolio and the Fair Lakes Office
Portfolio Loan (the "Wachovia Servicer" and collectively, with the Capmark
Servicer, the "Servicers") and X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer"), and LaSalle Bank National Association, as trustee (the
"Trustee") and 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 Directing Certificateholder] [acquired its Purchase Option
from the Directing 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(c) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the applicable 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 such
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 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 such 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 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 [Directing
Certificateholder] [Special Servicer] hereby acknowledges and affirms that it
transferred its Purchase Option to the Option Holder identified above on
[_________].
[_______________________]
By:______________________________
Name:
Title:]
EXHIBIT O
FORM OF TRUSTEE BACKUP CERTIFICATION
CD 2006-CD3 Mortgage Trust (The "Trust")
The undersigned, __________, a __________ of LASALLE BANK NATIONAL ASSOCIATION.,
on behalf of LASALLE BANK NATIONAL ASSOCIATION, as Trustee (the "Trustee") and
Paying Agent, under that certain pooling and servicing agreement, dated as of
October 1, 2006, (the "Pooling and Servicing Agreement") entered into by
Deutsche Mortgage & Asset Receiving Corporation, as depositor (the "Depositor"),
Capmark Finance Inc., as the servicer with respect to all of the Mortgage Loans
other than the Mortgage Loans known as the Ala Moana Portfolio and the Fair
Lakes Office Portfolio Loan (the "Capmark Servicer"), Wachovia Bank, National
Association, as the servicer with respect to the Mortgage Loans known as the Ala
Moana Portfolio and the Fair Lakes Office Portfolio Loan (the "Wachovia
Servicer" and collectively, with the Capmark Servicer, the "Servicers") and X.X.
Xxxxxx Company, Inc., as special servicer (the "Special Servicer"), and the
Trustee, certify to [_______], Deutsche Mortgage & Asset Receiving Corporation
and its officers, directors and affiliates, to the extent that the following
information is within our normal area of responsibilities and duties under the
Pooling and Servicing Agreement, 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
containing statements to certificateholders filed in respect of
periods included in the year covered by the Annual Report
(collectively with the Annual Report, the "Reports"), of the Trust;
2. To the best of my knowledge, any information in the Reports prepared
or calculated by the Trustee (but not including any mortgage loan
information provided to the Trustee by the applicable Servicer or
Special Servicer that was used as a basis for such preparations or
calculations), taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading as of the last
day of the period covered by the Annual Report;
3. To the best of my knowledge, all of the distribution, servicing and
other information provided to the Trustee by the applicable Servicer
and the Special Servicer under the Pooling and Servicing Agreement
for inclusion in the Reports is included in the Reports;
4. I am responsible for reviewing the activities performed by the
Trustee and based on my knowledge and the compliance reviews
conducted in preparing the Trustee compliance statements required
for inclusion on Form 10-K pursuant to Item 1123 of Regulation AB,
and except as disclosed on any Reports, the Trustee has fulfilled
its obligations in all material respects under the Pooling and
Servicing Agreement; and
5. All annual assessment reports required under Section 10.12 of the
Pooling and Servicing Agreement and their related annual attestation
reports required to be provided to the Trustee and the Depositor by
the Trustee or any Servicing Function Participant retained by the
Trustee under or as contemplated by the Pooling and Servicing
Agreement have been provided thereby. Based on my knowledge, all
material instances of noncompliance with the Relevant Servicing
Criteria have been disclosed in such reports, in each case based
upon the annual attestation report provided by a registered public
accounting firm, after conducting a review in compliance with the
standards for attestation engagements issued or adopted by the
PCAOB, delivered pursuant to Section 10.13 of the Pooling and
Servicing Agreement.
Capitalized terms used but not defined herein have the meanings set forth in the
Pooling and Servicing Agreement.
Date: _________________________
LASALLE BANK NATIONAL ASSOCIATION.
_______________________________
[Signature]
[Title]
EXHIBIT P
FORM OF SERVICER BACKUP CERTIFICATION
CD 2006-CD3 Mortgage Trust (the "Trust")
I, [identify the certifying individual], a [_______________] of [CAPMARK FINANCE
INC., a California corporation (the "Capmark Servicer")] [WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association, (the "Wachovia Servicer")]
as [Capmark Servicer] [Wachovia Servicer] under that certain pooling and
servicing agreement dated as of October 1, 2006 (the "Pooling and Servicing
Agreement"), among Deutsche Mortgage and Asset Receiving Corporation, as
depositor (the "Depositor"), Capmark Finance Inc., as the servicer with respect
to all of the Mortgage Loans other than the Mortgage Loans known as the Ala
Moana Portfolio and the Fair Lakes Office Portfolio Loan (the "Capmark
Servicer"), Wachovia Bank, National Association, as the servicer with respect to
the Mortgage Loans known as the Ala Moana Portfolio and the Fair Lakes Office
Portfolio Loan (the "Wachovia Servicer" and collectively, with the Capmark
Servicer, the "Servicers") and X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer"), and LaSalle Bank National Association, as trustee (the
"Trustee") and paying agent, on behalf of the [Capmark Servicer] [Wachovia
Servicer], certify to [Name of Certifying Person(s) for Xxxxxxxx-Xxxxx
Certification], the Depositor, and its officers, directors and affiliates, and
with the knowledge and intent that they will rely upon this certification, that:
1. Based on my knowledge, with respect to the period ending December
31, 20[__] (the "Relevant Period"), and assuming the accuracy of the
statements required to be made by the Special Servicer in the
special servicer backup certificate delivered by the Special
Servicer relating to the Relevant Period, all servicing information
and all reports required to be submitted by the [Capmark Servicer]
[Wachovia Servicer] to the Trustee pursuant to Sections 3.13(a) and
3.13(c) of the Pooling and Servicing Agreement (the "Servicer
Reports") for inclusion in the annual report on Form 10-K for the
Relevant Period and inclusion in all reports on Form 8-K have been
submitted by the [Capmark Servicer] [Wachovia Servicer] to the
Trustee for inclusion in these reports;
2. Based on my knowledge, and assuming the accuracy of the statements
required to be made by the Special Servicer in the special servicer
backup certificate delivered by the Special Servicer relating to the
Relevant Period, the information contained in the Servicer Reports,
taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such
statements were made, not misleading as of the last day of the
period ending December 31, 20[__];
3. I am responsible for reviewing the activities performed by the
[Capmark Master Servicer] [Wachovia Master Servicer] under the
Pooling and Servicing Agreement and based upon my knowledge and the
annual compliance reviews conducted in preparing the servicer
compliance statements required for inclusion on Form 10-K pursuant
to Item 1123 of Regulation AB with respect to the [Capmark Master
Servicer] [Wachovia Master Servicer], and except as disclosed in the
compliance certificate delivered by the [Capmark Master Servicer]
[Wachovia Master Servicer] under Section 10.11. of the Pooling and
Servicing Agreement, the [Capmark Master Servicer] [Wachovia Master
Servicer] has fulfilled its obligations under the Pooling and
Servicing Agreement in all material respects;
4. I have disclosed to the accountants that are to deliver the annual
attestation report on assessment of compliance with the Relevant
Servicing Criteria in respect of the [Capmark Master Servicer]
[Wachovia Master Servicer] with respect to the Trust's fiscal year
_____ all information relating to the [Capmark Master Servicer's]
[Wachovia Master Servicer's] assessment of compliance with the
Relevant Servicing Criteria in order to enable them to conduct a
review in compliance with the standards for attestation engagements
issued or adopted by the PCAOB; and
5. All annual assessment reports required under Section 10.12 of the
Pooling and Servicing Agreement and their related annual attestation
reports required to be provided to the Trustee and the Depositor by
the [Capmark Master Servicer] [Wachovia Master Servicer] or any
Servicing Function Participant retained by the [Capmark Master
Servicer] [Wachovia Master Servicer] (other than a Loan Seller
Sub-Servicer) under or as contemplated by the Pooling and Servicing
Agreement have been provided thereby. Based on my knowledge, all
material instances of noncompliance with the Relevant Servicing
Criteria have been disclosed in such reports, in each case based
upon the annual attestation report provided by a registered public
accounting firm, after conducting a review in compliance with the
standards for attestation engagements issued or adopted by the
PCAOB, delivered pursuant to Section 10.13 of the Pooling and
Servicing Agreement.
Capitalized terms used but not defined herein have the meanings set
forth in the Pooling and Servicing Agreement.
Date: _________________________
[CAPMARK FINANCE INC.]
By: _____________________________
Name:
Title:
[WACHOVIA BANK, NATIONAL ASSOCIATION]
By: _____________________________
Name:
Title:
EXHIBIT Q
FORM OF SPECIAL SERVICER BACKUP CERTIFICATION
CD 2006-CD3 Mortgage Trust (the "Trust")
I, [identify the certifying individual], a [_______________ ] of X.X. XXXXXX
COMPANY, INC. (the "Special Servicer") as Special Servicer under that certain
pooling and servicing agreement dated as of October 1, 2006 (the "Pooling and
Servicing Agreement"), among Deutsche Mortgage and Asset Receiving Corporation,
as depositor (the "Depositor"), Capmark Finance Inc., as the servicer with
respect to all of the Mortgage Loans other than the Mortgage Loans known as the
Ala Moana Portfolio and the Fair Lakes Office Portfolio Loan (the "Capmark
Servicer"), Wachovia Bank, National Association, as the servicer with respect to
the Mortgage Loans known as the Ala Moana Portfolio and the Fair Lakes Office
Portfolio Loan (the "Wachovia Servicer" and collectively, with the Capmark
Servicer, the "Servicers") and X.X. Xxxxxx Company, Inc., as special servicer,
and LaSalle Bank National Association, as trustee (the "Trustee") and paying
agent, on behalf of the Special Servicer, certify to [Name of Certifying
Person(s) for Xxxxxxxx-Xxxxx Certification], the Depositor, and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification, that:
1. Based on my knowledge, with respect to the period ending December
31, 20[__] (the "Relevant Period"), all servicing information and
all required reports required to be submitted by the Special
Servicer to the applicable Servicer, the Depositor or Trustee
pursuant to the Pooling and Servicing Agreement (the "Special
Servicer Reports") for inclusion in the annual report on Form 10-K
for the Relevant Period and inclusion in all reports on Form 8-K
have been submitted by the Special Servicer to the applicable
Servicer, the Depositor or the Trustee, as applicable, for inclusion
in these reports;
2. Based on my knowledge, the information contained in the Special
Servicer Reports, taken as a whole, does not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading as of the last
day of the period ending December 31, 20[__];
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 annual compliance reviews conducted in
preparing the servicer compliance statements required in this report
under Item 1123 of Regulation AB with respect to the Special
Servicer, and except as disclosed in the compliance certificate
delivered by the Special Servicer under Section 10.11. of the
Pooling and Servicing Agreement, the Special Servicer has fulfilled
its obligations under the Pooling and Servicing Agreement in all
material respects;
4. I have disclosed to the accountants that are to deliver the annual
attestation report on assessment of compliance with the Relevant
Servicing Criteria in respect of the Special Servicer with respect
to the Trust's fiscal year _____ all information relating to the
Special Servicer assessment of compliance with the Relevant
Servicing Criteria, in order to enable them to conduct a review in
compliance with the standards for attestation engagements issued or
adopted by the PCAOB; and
5. All annual assessment reports required under Section 10.12 of the
Pooling and Servicing Agreement and their related annual attestation
reports required to be provided to the Trustee and the Depositor by
the Special Servicer or any Servicing Function Participant retained
by the Special Servicer under or as contemplated by the Pooling and
Servicing Agreement have been provided thereby. Based on my
knowledge, all material instances of noncompliance with the Relevant
Servicing Criteria have been disclosed in such reports, in each case
based upon the annual attestation report provided by a registered
public accounting firm, after conducting a review in compliance with
the standards for attestation engagements issued or adopted by the
PCAOB, delivered pursuant to Section 10.13 of the Pooling and
Servicing Agreement.
Capitalized terms used but not defined herein have the meanings set forth in the
Pooling and Servicing Agreement.
Date: __________________________
X.X XXXXXX COMPANY, INC.
By:_____________________________
Name:
Title:
EXHIBIT R
FORM OF NOTIFICATION FROM CUSTODIAN
[DATE]
To the Persons Listed on the attached Schedule A
Re: CD 2006-CD3
Ladies and Gentlemen:
In accordance with Section 2.02 of the Pooling and Servicing
Agreement, dated as of October 1, 2006 (the "Pooling and Servicing Agreement"),
entered into by Deutsche Mortgage and Asset Receiving Corporation, as depositor
(the "Depositor"), Capmark Finance Inc., as the servicer with respect to all of
the Mortgage Loans other than the Mortgage Loans known as the Ala Moana
Portfolio and the Fair Lakes Office Portfolio Loan (the "Capmark Servicer"),
Wachovia Bank, National Association, as the servicer with respect to the
Mortgage Loans known as the Ala Moana Portfolio and the Fair Lakes Office
Portfolio Loan (the "Wachovia Servicer" and collectively, with the Capmark
Servicer, the "Servicers") and X.X. Xxxxxx Company, Inc., as special servicer
(the "Special Servicer"), and LaSalle Bank National Association, as trustee (the
"Trustee") and paying agent, the undersigned, as Custodian, hereby notifies you
that, based upon the review required under the Pooling and Servicing Agreement,
the Mortgage File for each Mortgage Loan set forth on the attached defect
schedule contains a document or documents which (i) has not been executed or
received, (ii) has not been recorded or filed (if required), (iii) is unrelated
to the Mortgage Loans identified in the Mortgage Loan Schedule, (iv) appears not
to be what they purport to be or has been torn in any materially adverse manner
or (v) is mutilated or otherwise defaced, in each case as more fully described
on the attached defect schedule.
The Custodian has no responsibility to determine, and expresses no
opinion with respect thereto, whether any document or opinion is legal, valid,
binding or enforceable, whether the text of any assignment or endorsement is in
proper or recordable form (except, if applicable, to determine if the Trustee is
the assignee or endorsee), whether any document has been recorded in accordance
with the requirements of any applicable jurisdiction, whether a blanket
assignment is permitted in any applicable jurisdiction, or whether any Person
executing any document or rendering any opinion is authorized to do so or
whether any signature thereon is genuine.
Capitalized words and phrases used herein shall have the respective
meanings assigned to them in the above-captioned Pooling and Servicing
Agreement.
[SIGNATURE PAGE FOLLOWS]
LASALLE BANK NATIONAL ASSOCIATION,
as Custodian
By:_____________________________
Name:
Title:
SCHEDULE A TO FORM OF NOTIFICATION FROM CUSTODIAN
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Wachovia Bank, National Association
NC 1075, 0000 Xxxxxxxx Xxxxx XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Deutsche Mortgage & Asset Receiving Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
X.X. Xxxxxx Company, Inc.
0000 Xxxxxx Xxxxxxxxx, Xxxxxx 0000
XxXxxx, Xxxxxxxx
If to the German American Capital Corporation, as Mortgage Loan Seller, to:
German American Capital Corporation
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
If to Citigroup Global Markets Realty Corp., as Mortgage Loan Seller, to:
Citigroup Global Markets Realty Corp.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy No.: (000) 000-0000
If to Capmark Finance Inc., as Mortgage Loan Seller, to:
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Legal Department
Telecopy No.: (000) 000-0000
If to Barclays Capital Inc., as Mortgage Loan Seller, to:
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
With a copy to:
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxxx, Esq. and Xxxxx Xxxxxxxx, Esq.
DEFECT SCHEDULE
EXHIBIT S-1
FORM OF CLOSING DATE TRUSTEE CERTIFICATION
October [__], 2006
Deutsche Bank Securities Inc. Capmark Finance Inc.
00 Xxxx Xxxxxx 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxx, Xxxxxxxxxxxx 00000
Citigroup Global Markets Inc. Barclays Capital Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx 000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Wachovia Capital Markets, LLC Banc of America Securities LLC
000 Xxxxx Xxxxxxx Xxxxxx, XX-0 000 Xxxxx Xxxxx Xxxxxx
One Wachovia Center NC0166 NCI-027-22-03
Charlotte, North Carolina 28288 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Standard & Poor's Rating Services, X.X. Xxxxxx Company, Inc.
a division of 0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000
The XxXxxx-Xxxx Companies, Inc. McLean, Virginia
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx'x Investors Service, Inc. Capmark Securities Inc.
00 Xxxxxx Xxxxxx 00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, xxx Xxxx 00000
Re: Commercial Mortgage Pass-Through Certificates, Series CD 2006-CD3
In accordance with Section 2.01(b) of the Pooling and Servicing
Agreement, dated as of October 1, 2006 (the "Agreement") entered into by among
Deutsche Mortgage and Asset Receiving Corporation, as depositor (the
"Depositor"), Capmark Finance Inc., as the servicer with respect to all of the
Mortgage Loans other than the Mortgage Loans known as the Ala Moana Portfolio
and the Fair Lakes Office Portfolio Loan (the "Capmark Servicer"), Wachovia
Bank, National Association, as the servicer with respect to the Mortgage Loans
known as the Ala Moana Portfolio and the Fair Lakes Office Portfolio Loan (the
"Wachovia Servicer" and collectively, with the Capmark Servicer, the
"Servicers") and X.X. Xxxxxx Company, Inc., as special servicer, and LaSalle
Bank National Association, as trustee (the "Trustee") and paying agent. The
undersigned, as Trustee and Paying Agent, hereby certifies that, with respect to
each Mortgage Loan listed on the Mortgage Loan Schedule attached hereto as
Schedule A, (a) the Trustee has in its possession all Notes or an appropriate
lost note affidavit, and (b) 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, appear to be executed
and relate to such Mortgage Loan.
Capitalized terms used but not defined herein shall the respective
meanings set forth in the Agreement.
LASALLE BANK NATIONAL ASSOCIATION
as Trustee
[____________________]
Corporate Trust Officer
SCHEDULE A TO CLOSING DATE TRUSTEE CERTIFICATION
(MORTGAGE LOAN SCHEDULE)
EXHIBIT T
FORM OF NOTICE TO THE TRUSTEE AND S&P FROM THE MASTER SERVICER
REGARDING DEFEASANCE OF MORTGAGE LOAN
For Mortgage Loans having a Stated Principal Balance of $20,000,000 or less or
having an aggregate Stated Principal Balance of 5% or less of all of the
Mortgage Loans (whichever is less), so long as of the date hereof such Mortgage
Loan is not one of the ten largest Mortgage Loans by Stated Principal Balance
To: Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
From: [Capmark Finance Inc. (referred herein as "Capmark Servicer")] [Wachovia
Bank, National Association (referred herein as "Wachovia Servicer")] in its
capacity as Master Servicer under the Pooling and Servicing Agreement dated as
of October 1, 2006 (the "Pooling and Servicing Agreement"), among the [Capmark
Servicer] [Wachovia Servicer], LaSalle Bank National Association, as Trustee,
and certain other parties.
Date: _________, 20___
Re: Deutsche Mortgage & Asset Receiving Corporation, Commercial Mortgage
Pass-Through Certificates Series CD 2006-CD3 Mortgage Loan (the "Mortgage Loan")
heretofore secured by real property known as __________________.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement.
THE STATEMENTS SET FORTH BELOW ARE MADE (A) TO THE BEST KNOWLEDGE OF THE
UNDERSIGNED BASED UPON DUE DILIGENCE CONSISTENT WITH THE SERVICING STANDARD
SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (THE "SERVICING STANDARD"), AND
(B) WITHOUT INTENDING TO WARRANT THE ACCURACY THEREOF OR UNDERTAKE ANY DUTY OR
STANDARD OF CARE GREATER THAN THE DUTIES OF THE SERVICERS UNDER THE POOLING AND
SERVICING AGREEMENT AND THE SERVICING STANDARD
We hereby notify you and confirm that each of the following is true, subject to
those exceptions, if any, set forth on Exhibit A hereto, which exceptions the
[Capmark Servicer] [Wachovia Servicer] has determined, consistent with the
Servicing Standard, will have no material adverse effect on the Mortgage Loan or
the defeasance transaction:
1. The Borrower has consummated a defeasance of the Mortgage Loan
of the type checked below:
___ a full defeasance of the entire outstanding principal balance
($___________) of the Mortgage Loan; or
___ a partial defeasance of a portion ($________) of the Mortgage
Loan that represents ___% of the entire principal balance of the Mortgage Loan
($_________);
2. The defeasance was consummated on ____________, 20__.
3. The defeasance was completed in all material respects in
accordance with the conditions for defeasance specified in the Loan Documents
and in accordance with the Servicing Standard.
4. The defeasance collateral consists only of one or more of the
following: (i) direct debt obligations of the U.S. Treasury, (ii) direct debt
obligations of the Federal National Mortgage Association, (iii) direct debt
obligations of the Federal Home Loan Mortgage Corporation, or (iv) interest-only
direct debt obligations of the Resolution Funding Corporation. Such defeasance
collateral consists of securities that (i) if they include a principal
obligation, the principal due at maturity cannot vary or change, (ii) provide
for interest at a fixed rate and (iii) are not subject to prepayment, call or
early redemption.
5. After the defeasance, the defeasance collateral will be owned by
an entity (the "Defeasance Obligor") that: (i) is the original Borrower, (ii) is
a Single-Purpose Entity (as defined in the S&P Criteria), (iii) is subject to
restrictions in its organizational documents substantially similar to those
contained in the organizational documents of the original Borrower with respect
to bankruptcy remoteness and single purpose, (iv) has been designated as the
Defeasance Obligor by the originator of the Mortgage Loan pursuant to the terms
of the Loan Documents, or (v) has delivered a letter from Standard & Poor's
confirming that the organizational documents of such Defeasance Obligor were
previously approved by Standard & Poor's. The Defeasance Obligor owns no assets
other than defeasance collateral and (only in the case of the original Borrower)
real property securing one or more Mortgage Loans included in the pool under the
Pooling and Servicing Agreement (the "Pool").
6. If such Defeasance Obligor (together with its affiliates) holds
more than one defeased loan, it does not (together with its affiliates) hold
defeased loans aggregating more than $20 Million or more than five percent (5%)
of the aggregate certificate balance of the Certificates as of the date of the
most recent Paying Agent's Monthly Certificateholder Report received by the
[Capmark Servicer] [Wachovia Servicer] (the "Current Report").
7. The defeasance documents require that the defeasance collateral
be credited to an eligible account (as defined in the S&P Criteria) that must be
maintained as a securities account by a securities intermediary that is at all
times an Eligible Institution (as defined in the S&P Criteria). The securities
intermediary may reinvest proceeds of the defeasance collateral only in
Permitted Investments (as defined in the Pooling and Servicing Agreement).
8. The securities intermediary is obligated to pay from the proceeds
of the defeasance collateral directly to the [Capmark Servicer's] [Wachovia
Servicer's] collection account, all scheduled payments on the Mortgage Loan or,
in a partial defeasance, not less than 125% of the portion of such scheduled
payments attributed to the allocated loan amount for the real property defeased
(the "Scheduled Payments").
9. The [Capmark Servicer] [Wachovia Servicer] received written
confirmation from an independent certified public accountant 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 including the payment in full of the Mortgage Loan (or
the allocated portion thereof in connection with a partial defeasance) on its
Maturity 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, (iii) the defeasance collateral is not subject to
prepayment, call or early redemption, and (iv) interest income from the
defeasance collateral to the Defeasance Obligor in any tax 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, other than in
the year in which the Maturity Date or Anticipated Repayment Date will occur,
when interest income will exceed interest expense.
10. The [Capmark Servicer] [Wachovia Servicer] received opinions of
counsel that, subject to customary qualifications, (i) the defeasance will not
cause the Trust to fail to qualify as a REMIC for purpose of the Internal
Revenue Code, (ii) the agreements executed by the Mortgagor and the Defeasance
Obligor in connection with the defeasance are enforceable against them in
accordance with their terms, and (iii) the Trustee will have a perfected, first
priority security interest in the defeasance collateral.
11. The agreements executed in connection with the defeasance (i)
prohibit subordinate liens against the defeasance collateral, (ii) provide for
prepayment from sources other than the defeasance collateral of all fees and
expenses of the securities intermediary for administering the defeasance and the
securities account and all fees and expense of maintaining the existence of the
Defeasance Obligor, (iii) permit release of surplus defeasance collateral and
earnings on reinvestment to the Defeasance Obligor only after the Mortgage Loan
has been paid in full, (iv) include representations and/or covenants of the
Mortgagor and/or securities intermediary substantially as set forth on Exhibit B
hereto, (v) provide for survival of such representations; and (vi) do not permit
waiver of such representations and covenants.
12. The outstanding principal balance of the Mortgage Loan
immediately before the defeasance was less than $20,000,000 or less than 5% of
the aggregate certificate balance of the Certificates as of the date of the
Current Report. The Mortgage Loan is not one of the ten (10) largest loans in
the pool.
13. Copies of all material agreements, instruments, organizational
documents, opinions of counsel, accountant's report and other items delivered in
connection with the defeasance will be provided to you upon request.
14. The individual executing this notice is an authorized officer or
a servicing officer of the Servicer.
IN WITNESS WHEREOF, the [Capmark Servicer] [Wachovia Servicer] has
caused this notice to be executed as of the date captioned above.
[CAPMARK FINANCE INC.]
[WACHOVIA BANK, NATIONAL ASSOCIATION]:
By:____________________________________
Name:
Title:
EXHIBIT A
Form of Notice and Certification Regarding Defeasance of Mortgage Loan
(List of Exceptions)
EXHIBIT B
Perfected Security Interest Representations
General:
[The defeasance agreements] create a valid and continuing security
interest (as defined in the applicable UCC) in the [Collateral, Securities
Account and Deposit Account] in favor of the [Secured Party], which security
interest is prior to all other [Liens], and is enforceable as such as against
creditors of and purchasers from [Debtor].
Note that "Collateral" means securities, permitted investments and other
assets credited to securities accounts.
The [Deposit Account] constitutes a "deposit account" within the
meaning of the applicable UCC.
All of the [Collateral] has been and will have been credited to a
[Securities Account]. The securities intermediary for the [Securities Account
has agreed to treat all assets credited to the [Securities Account] as
"financial assets" within the meaning of the UCC.
Creation:
[Debtor] owns and has good and marketable title to the [Collateral,
Securities Account and Deposit Account] free and clear of any [Lien], claim or
encumbrance of any Person.
[Debtor] has received all consents and approvals required by the
terms of the [Collateral] to the transfer to the [Secured Party] of its interest
and rights in the [Collateral] hereunder.
Perfection:
[Debtor] has caused or will have caused, within ten (10) days, the
filing of all appropriate financing statements in the proper filing office in
the appropriate jurisdictions under applicable law in order to perfect the
security interest granted in the [Collateral, Securities Account and Deposit
Account] to the [Secured Party] hereunder.
[Debtor] has delivered to [Secured Party] a fully executed agreement
pursuant to which the securities intermediary or the account bank has agreed to
comply with all instructions originated by the [Secured Party] relating to the
[Securities Account] or directing disposition of the funds in the [Deposit
Account] without further consent by the [Debtor].
[Debtor] has taken all steps necessary to cause the securities
intermediary to identify in its records the [Secured Party] as the person having
a security entitlement against the securities intermediary in the [Securities
Account].
[Debtor] has taken all steps necessary to cause [Secured Party] to
become the account holder of the [Deposit Account].
Priority:
Other than the security interest granted to the [Secured Party]
pursuant to his Agreement, [Debtor] has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the [Collateral, Securities
Account and Deposit Account]. [Debtor] has not authorized the filing of and is
not aware of any financing statements against [Debtor] that include a
description of collateral covering the [Collateral, Securities Account and
Deposit Account] other than any financing statement relating to the security
interest granted to the [Secured Party] hereunder or that has been terminated.
Debtor is not aware of any judgment or tax lien filings against [Debtor].
EXHIBIT U
INFORMATION REQUEST FORM
Date: [________] [__], 20[__]
[Address of party from
whom information is requested]
Attention: Deutsche Mortgage Asset & Receiving Corporation, Commercial Mortgage
Pass Through Certificates, CD 2006-CD3
In accordance with the Pooling and Servicing Agreement, dated as of
October 1, 2006 (the "Agreement"), entered into by among Deutsche Mortgage and
Asset Receiving Corporation, as depositor (the "Depositor"), Capmark Finance
Inc., as the servicer with respect to all of the Mortgage Loans other than the
Mortgage Loans known as the Ala Moana Portfolio and the Fair Lakes Office
Portfolio Loan (the "Capmark Servicer"), Wachovia Bank, National Association, as
the servicer with respect to the Mortgage Loans known as the Ala Moana Portfolio
and the Fair Lakes Office Portfolio Loan (the "Wachovia Servicer" and
collectively, with the Capmark Servicer, the "Servicers") and X.X. Xxxxxx
Company, Inc., as special servicer, (the "Special Servicer") and LaSalle Bank
National Association, as trustee (the "Trustee") and paying agent, with respect
to the above referenced certificates (the "Certificates"), the undersigned
hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner or prospective purchaser of the
Class [__] Certificates.
2. The undersigned is requesting from [name of party from whom information is
requested] certain information (the "Information") pursuant to the
provisions of the Agreement.
3. In consideration of the [name of party from whom information is
requested]'s disclosure to the undersigned of the Information, or access
thereto, the undersigned will keep the Information confidential (except
from such outside persons as are assisting it in making an evaluation in
connection with purchasing the related Certificates, from its accountants
and attorneys, and otherwise from such governmental or banking authorities
or agencies to which the undersigned is subject), and such Information,
will not, without the prior written consent of [name of party from whom
information is requested], be otherwise disclosed by the undersigned or by
its officers, directors, partners, employees, agents or representatives
(collectively, the "Representative") in any manner whatsoever, in whole or
in part.
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.
5. The undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor,
[name of party from whom information is requested], the Trustee and the
Trust Fund for any loss, liability or expense incurred thereby with
respect to any such breach by the undersigned or any its Representative.
6. Capitalized terms used but not defined herein shall have the respective
meanings assigned thereto 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.
[___________________________________]
Beneficial Owner or Prospective Purchaser
By:__________________________________
Title:_______________________________
Company:_____________________________
Phone:_______________________________
EXHIBIT V
Additional Disclosure Notification
**SEND VIA FAX TO [_____] AND VIA EMAIL TO [ ] AND VIA OVERNIGHT MAIL TO THE
ADDRESS IMMEDIATELY BELOW**
LaSalle Bank National Association,
as Trustee and Paying Agent
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services Group - CD 2006-CD3
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 October 1, 2006, among Deutsche Mortgage Asset &
Receiving Corporation, as depositor, Capmark Finance Inc., as the servicer with
respect to all of the Mortgage Loans other than Mortgage Loans known as the Ala
Moana Portfolio Loan and the Fair Lakes Office Portfolio Loan (the "Capmark
Servicer"), Wachovia Bank, National Association as the servicer with respect to
the Mortgage Loans known as the Ala Moana Portfolio Loan and the Fair Lakes
Office Portfolio Loan (the "Wachovia Servicer" and collectively, with the
Capmark Servicer, the "Servicers"), X.X. Xxxxxx Company, Inc., as special
servicer (the "Special Servicer") and LaSalle Bank National Association, as
trustee and 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: [_________]; email address:
[___________________].
[NAME OF PARTY],
as [role]
By:
Name:
Title:
Exhibit W
Loan Seller Sub-Servicers
Wachovia Master Servicer
------------------------
Fair Lakes
Ala Moana
CVS - Watertown, MA
Capmark Master Servicer
-----------------------
000 Xxxxx Xxxxxx
XXXXX Loan Services, L.P.
-------------------------
Lakeview Office Center
Avondale Village
Bank of America Plaza
The Cascades
0000 Xxxxxxxxx Xxxx
Xxxxx Xxxx Place Apartments
Xxxxxxxxx Shopping Center
000-000 Xxxxxxx Xxxxxxxxx
The Shoppes at the Creek
GMAC Commercial Mortgage
------------------------
Village at Century
Laureate Capital, LLC
---------------------
Hampton Inn & Suites - Santa Xxx
ITT Building Portfolio
Midland Loan Services
---------------------
Shopko Portfolio
Newmark (non-cashiering)
------------------------
Century City Central Plant
Atlanthub
Parkview Apartments
Broadmark
Wenatchee Manorhouse
NorthMarq Capital, Inc.
-----------------------
Circle Point
Delray Town Center
Dillards-Cincinnati
Sierra Court Shopping Center
St. Xxxxxx Medical Plaza
Aztec Square
Post Shopping Center
00 Xxxxx Xxxxx
Xxxxxxx Xxxxxxxxx Realty Services
---------------------------------
Springs Industries Pool 3
Springs Industries Pool 1
Carmax
Borders Books - Montclair
Exhibit X
Control Holdback
# Property Name Loan Balance Amount Holdback Provisions
------- -------------- ------------ --------- -----------------------------
In order to receive a
release of the earnout, the
borrower must increase the
occupancy to 95%, maintain a
1.20X DSCR, and demonstrate
an NOI of $1,776,500, all on
a trailing three month
basis, within 12 months of
37 Plaza Colonial 20,900,000 700,000 closing.
Golden Wheel
Manufactured
Housing Released if DSCR 1.20x and
62 Community 13,000,000 400,000 occupancy is at least 90%.
The performance holdback
will be released to the
Borrower as follows: (i) 40%
of the holdback subject to
minimum 87% occupancy and
minimum 1.15x on an
interest-only basis and (ii)
remaining 60% of holdback
subject to minimum 90%
occupancy and minimum 1.20x
DSCR based on the gross loan
amount stressed with a
Presbyterian 30-year amortization
63 Xxxxx MOB II 12,080,000 240,000 constant.
The holdback may be released
on or prior to the date that
is 36 months from the
closing date. Requests for
releases are limited to one
time per calendar month and
in increments of not less
than $200,000. The property
must have achieved a debt
Jetplex service coverage ratio of
Circle not less than 1.20x based on
65 Business Park 12,000,000 620,000 a 7.46% constant.
At closing, the Lender held
back $400,000. The Reserve
will be released when the
subject achieves a minimum,
interest-only DSCR of 1.20x,
based on the trailing 3
months of revenues
annualized, excluding Master
Lease income, less the
Prescott greater of trailing 12
Lakes months or underwritten
69 Apartments 11,340,000 400,000 expenses.
At closing, the Lender held
back $200,000 which will be
released during the first 24
months of the loan term
provided (i) the subject
maintains a minimum
occupancy of 90%, and (ii)
provided Net Loan Amount
(Gross Loan less the
Holdback) achieves a minimum
DSCR of 1.20x (based on a
30-year amortizing constant
and the trailing 12-month
income less the greater of
Mission trailing 12-month or
Battleground underwritten expenses, as
70 Park 11,200,000 200,000 determined by Lender).
At closing, Lender collected
$735,000 as a debt service
holdback. Funds will be
released when the property
achieves 1.20 to 1.0 DSCR at
greater of actual constant
and 6.70%. A Letter of
credit may be substituted
for the cash deposit that
was taken at closing.
Borrower has five years from
Avondale closing to draw down the
79 Village 10,000,000 735,000 holdback.
At closing, the Lender held
back loan proceeds in the
amount of $200,000. The hold
back will be released when
the subject achieves, for a
continuous six month period
beginning on or after
February 2007, the following
3 criteria: (i) actual gross
rent collections equal to or
exceeding $1,654,522; (ii) a
minimum DSCR of 1.20x based
on the annualized Trailing 6
months rents less the
Trailing 12 months or
underwritten expenses,
whichever is greater; and
(iii) pre-leasing of
units/beds for the 2007-2008
school year resulting in
minimum actual in-place
rents of $1,654,522. The
holdback may not be released
any earlier than August 2007
University (see the Escrow Information
Plains section of the Asset Summary
83 Apartments 9,300,000 200,000 for details).
A Debt Service Coverage
Reserve was established and
the Lender held back
$100,000 which was deposited
into the reserve. The
Reserve will be released
when the subject (i) reaches
a minimum economic occupancy
Forest Ridge of 90%, and (ii) attains a
87 Apartments 9,000,000 100,000 minimum DSCR of 1.20x
Provided there are no events
of default, the Earnout
shall be released to the
Borrower upon achieving (a)
a minimum DSCR of 1.20X
based on 35-year
amortization and a maximum
LTV of 80% on the Loan
Amount, and (b) a minimum
Rite Aid "Economic Occupancy" of
90 (Pittsburgh) 8,800,000 1,000,000 94%
A cash holdback of $500,000
was established at closing
and released when the
property achieves a 1.20X
DSC at the actual constant
of 7.49% on the full loan.
2296 The borrower has three years
000 Xxxxxxxxx Xxxx 7,500,000 500,000 to draw down the holdback.
At closing, the Lender
collected $475,000 for
TI/LCs on the Ground Floor
space. The holdback is
released for tenant
improvements and leasing
costs as leases are signed.
The spaces may be leased to
multiple tenants, but the
leases are subject to
reasonable approval by
Lender and must be bona fide
leases for minimum term of 3
years. Any excess money in
the Ground Floor reserve is
released if within the first
four years of the term,
tenant(s) in the Ground
Floor space are open, paying
rent and provide an estoppel
to lender and the property
000 Xxxxx Xxxxx 6,975,000 475,000 then meets a DSCR of 1.2:1.0.
At closing, the Borrower
posted a letter of credit
for $312,000. The letter of
credit must be released, if
at all, within three years
of the closing date. The
letter of credit will be
released when the property
has achieved a 95% occupancy
rate with a net cash flow of
at least $469,284 and a DSCR
000 Xxxxxxx Xxxxx 5,265,000 312,000 of at least 1.20x to 1.00x.
The holdback will be
released when the
underwritten DSCR on the
gross loan amount is 1.25x,
based on the Trailing
12-months revenue, less the
greater of Trailing
12-months or underwritten
expenses. The expenses will
be adjusted to reflect
actual real estate taxes
levied on the subject after
a decision is rendered on
the assessment challenge.
The hold back may be
Xxxxxxxxxx released during the first 24
175 Garage 3,192,251 300,000 months of the loan term.
Exhibit Y
FORM OF DEPOSITOR CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
Deutsche Mortgage and Asset Receiving Corporation,
Commercial Mortgage Pass-Through Certificates
Series CD 2006-CD3 (the "Trust")
I, [identify the certifying individual], a [title] of Deutsche
Mortgage and Asset Receiving Corporation, the depositor into the
above-referenced Trust, certify that:
(a) I have reviewed this annual report on Form 10-K, and all reports
Form 10-D required to be filed in respect of periods included in the year
covered by this annual report, of the Trust;
(b) 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 annual report;
(c) 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;
(d) Based on my knowledge and the servicer compliance statements
required in this report under Item 1123 of Regulation AB, and except as
disclosed in the Exchange Act periodic report, the servicers have
fulfilled their obligations under the pooling and servicing agreement; and
(e) All of the reports on assessment of compliance with servicing
criteria for asset-backed securities and their related attestation reports
on assessment of compliance with servicing criteria for asset-backed
securities 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, X.X. Xxxxxx Company, Inc., LaSalle Bank
National Association and [list any sub-servicers]
Date:___________________________
[______________________]
Deutsche Mortgage and Asset Receiving Corporation.
Exhibit Z
Serviced Companion Noteholder Register
Loan Name B Note Holder Notice Address
--------------------------------- ------------------------------------------
Ala Xxxxx XxXxxxx Bank, Real Estate Capital
Markets
000 XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Dechert LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Citigroup Global Markets Realty Corp.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Sidley Austin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
--------------------------------- ------------------------------------------
Two Gateway Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn.: Servicing Accounting - Manager
Fax: 000-000-0000
With a copy to:
Capmark Finance Inc.
000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn.: PLG Asset Manager
Fax: 000-000-0000
--------------------------------- ------------------------------------------
0000 Xxxxxx Xxxxxx (Xxxxxx IPark) SFT I, Inc.
c/o iStar Financial Inc.
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Operating Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
c/o iStar Financial Inc.
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx, Esq./General Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
iStar Asset Services Inc.
180 lastonbury Blavd., Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: President
Telephone: 000-000-0000
Facsimilie: 000-000-0000
With a copy to:
Xxxxxx Xxxxxx Rosenman LLP
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
Reference: 208972-00575
Telephone: 000-000-0000
Facsimile: 312-902-1061
--------------------------------- ------------------------------------------
Spectrum Centre CBA-Mezzanine Capital Finance, LLC
00 XXX Xxxxxxx
Xxxxxx Xxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, President and
CEO
Facsimile No.: (000) 000-0000
With a copy to:
CBA-Mezzanine Capital Finance, LLC
00 XXX Xxxxxxx
Xxxxxx Xxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attn: Legal Department
Facsimile No.: (000) 000-0000
--------------------------------- ------------------------------------------
Fair Lakes Xxxxx Fargo, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Wachovia Bank, National Association
NC 1075, 0000 Xxxxxxxx Xxxxx XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
SCHEDULE I
CLASS A-AB PLANNED PRINCIPAL BALANCE SCHEDULE
Date Period Balance Date Date Period Balance Date
--------- ------ ------------- --------- ------ -------------
10/1/2006 0 89,260,000.00 2/1/2011 52 89,260,000.00
11/1/2006 1 89,260,000.00 3/1/2011 53 89,260,000.00
12/1/2006 2 89,260,000.00 4/1/2011 54 89,260,000.00
1/1/2007 3 89,260,000.00 5/1/2011 55 89,260,000.00
2/1/2007 4 89,260,000.00 6/1/2011 56 89,260,000.00
3/1/2007 5 89,260,000.00 7/1/2011 57 89,260,000.00
4/1/2007 6 89,260,000.00 8/1/2011 58 89,260,000.00
5/1/2007 7 89,260,000.00 9/1/2011 59 89,260,000.00
6/1/2007 8 89,260,000.00 10/1/2011 60 89,260,000.00
7/1/2007 9 89,260,000.00 11/1/2011 61 89,260,000.00
8/1/2007 10 89,260,000.00 12/1/2011 62 89,260,000.00
9/1/2007 11 89,260,000.00 1/1/2012 63 89,260,000.00
10/1/2007 12 89,260,000.00 2/1/2012 64 89,239,205.55
11/1/2007 13 89,260,000.00 3/1/2012 65 86,325,359.54
12/1/2007 14 89,260,000.00 4/1/2012 66 84,070,028.84
1/1/2008 15 89,260,000.00 5/1/2012 67 81,466,608.31
2/1/2008 16 89,260,000.00 6/1/2012 68 79,185,531.64
3/1/2008 17 89,260,000.00 7/1/2012 69 76,557,020.92
4/1/2008 18 89,260,000.00 8/1/2012 70 74,237,436.77
5/1/2008 19 89,260,000.00 9/1/2012 71 71,905,567.31
6/1/2008 20 89,260,000.00 10/1/2012 72 69,224,407.12
7/1/2008 21 89,260,000.00 11/1/2012 73 66,865,970.88
8/1/2008 22 89,260,000.00 12/1/2012 74 64,158,920.93
9/1/2008 23 89,260,000.00 1/1/2013 75 61,773,639.22
10/1/2008 24 89,260,000.00 2/1/2013 76 59,375,723.18
11/1/2008 25 89,260,000.00 3/1/2013 77 57,875,723.18
12/1/2008 26 89,260,000.00 4/1/2013 78 56,375,723.18
1/1/2009 27 89,260,000.00 5/1/2013 79 54,875,723.18
2/1/2009 28 89,260,000.00 6/1/2013 80 53,375,723.18
3/1/2009 29 89,260,000.00 7/1/2013 81 51,875,723.18
4/1/2009 30 89,260,000.00 8/1/2013 82 50,375,723.18
5/1/2009 31 89,260,000.00 9/1/2013 83 48,875,723.18
6/1/2009 32 89,260,000.00 10/1/2013 84 47,362,686.73
7/1/2009 33 89,260,000.00 11/1/2013 85 44,899,191.65
8/1/2009 34 89,260,000.00 12/1/2013 86 42,098,868.12
9/1/2009 35 89,260,000.00 1/1/2014 87 39,607,488.26
10/1/2009 36 89,260,000.00 2/1/2014 88 37,102,917.10
11/1/2009 37 89,260,000.00 3/1/2014 89 33,617,515.91
12/1/2009 38 89,260,000.00 4/1/2014 90 31,081,184.49
1/1/2010 39 89,260,000.00 5/1/2014 91 28,209,882.93
2/1/2010 40 89,260,000.00 6/1/2014 92 25,644,902.72
3/1/2010 41 89,260,000.00 7/1/2014 93 22,745,681.79
4/1/2010 42 89,260,000.00 8/1/2014 94 20,151,752.33
5/1/2010 43 89,260,000.00 9/1/2014 95 17,544,086.75
6/1/2010 44 89,260,000.00 10/1/2014 96 14,603,265.94
7/1/2010 45 89,260,000.00 11/1/2014 97 11,966,203.51
8/1/2010 46 89,260,000.00 12/1/2014 98 8,996,734.39
9/1/2010 47 89,260,000.00 1/1/2015 99 6,329,966.80
10/1/2010 48 89,260,000.00 2/1/2015 100 3,649,076.19
11/1/2010 49 89,260,000.00 3/1/2015 101 2,705.72
12/1/2010 50 89,260,000.00 4/1/2015 102 --
1/1/2011 51 89,260,000.00
Schedule II
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum,
the criteria identified below as "Relevant Servicing Criteria" (with each
Servicing Function Participant deemed to be responsible for the items applicable
to the functions it is performing and for which the party that retained such
Servicing Function Participant is responsible):
Relevant Servicing Criteria Applicable Party(ies)
------------------------------------------------------------------------------------------------------------------------------------
Reference Criteria
------------------------------------------------------------------------------------------------------------------------------------
General Servicing Considerations
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other triggers and Trustee
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 and Trustee
procedures are instituted to monitor the third party's performance and compliance with Master Servicer
such servicing activities. Special Servicer
1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up servicer for the N/A
mortgage loans are maintained.
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party participating in Master Servicer
the servicing function throughout the reporting period in the amount of coverage required Special Servicer
by and otherwise in accordance with the terms of the transaction agreements.
Cash Collection and Administration
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank accounts and Trustee
related bank clearing accounts no more than two business days following receipt, or such Master Servicer
other number of days specified in the transaction agreements. Special Servicer
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor are made Trustee
only by authorized personnel.
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or distributions, and Master Servicer
any interest or other fees charged for such advances, are made, reviewed and approved as Special Servicer
specified in the transaction agreements. Trustee
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or accounts Trustee
established as a form of overcollateralization, are separately maintained (e.g., with Master Servicer
respect to commingling of cash) as set forth in the transaction agreements. Special Servicer
1122(d)(2)(v) Each custodial account is maintained at a federally insured depository institution as set Trustee
forth in the transaction agreements. For purposes of this criterion, "federally insured Master Servicer
depository institution" with respect to a foreign financial institution means a foreign Special Servicer
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. Master Servicer
Special Servicer
Trustee
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities related Trustee
bank accounts, including custodial accounts and related bank clearing accounts. These Master Servicer
reconciliations are (A) mathematically accurate; (B) prepared within 30 calendar days Special Servicer
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 maintained in Trustee
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 Servicer.
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with timeframes, Trustee
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 Servicer's Trustee
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 checks, or Trustee
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 transaction Trustee
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 transaction Trustee
agreements. Special Servicer
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed and approved Trustee
in accordance with any conditions or requirements in the transaction agreements. Special Servicer
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with the related Master Servicer
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 Servicer's records regarding the mortgage loans agree with the Servicer's records with Master Servicer
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 (e.g., loan Master Servicer
modifications or re-agings) are made, reviewed and approved by authorized personnel in Special Servicer
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 deeds in Special Servicer
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 mortgage loan is Master Servicer
delinquent in accordance with the transaction agreements. Such records are maintained on Special Servicer
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 variable rates Master Servicer
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): (A) such funds Master Servicer
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 made on or Master Servicer
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 of an Master Servicer
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 to the Master Servicer
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 recorded in Master Servicer
accordance with the transaction agreements.
1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1) through (3) or N/A
Item 1115 of Regulation AB, is maintained as set forth in the transaction agreements.
SCHEDULE III
Additional Form 10-D Disclosure
The parties identified in the "Party Responsible" column (with each Servicing
Function Participant deemed to be responsible for the following items for which
the party that retained such Servicing Function Participant is responsible) are
obligated pursuant to Section 10.6 of the Pooling and Servicing Agreement to
disclose to the Depositor and the Trustee any information described in the
corresponding Form 10-D Item described in the "Item on Form 10-D" column to the
extent such party has actual knowledge (and in the case of financial statements
required to be provided in connection with Item 6 below, possession) of such
information (other than information as to itself).
Item on Form 10-D Party Responsible
Distribution and Pool Performance o Master Servicer (only with respect
Information: to 1121(a)(12) as to non Specially
o Only with respect to Serviced Loans)
any information
required by 1121 which o Special Servicer (only with
is NOT included on the respect to 1121(a)(12) as to
Distribution Date Specially Serviced Loans)
Statement
o Depositor
o Trustee
Item 2: Legal Proceedings: o Master Servicer (as to itself)
o Item 1117 of Regulation
AB (to the extent o Special Servicer (as to itself)
material to
Certificateholders) o Trustee (as to itself)
o Depositor (as to itself)
o Any other Reporting Servicer (as
to itself)
o Trustee/ Master
Servicer/Depositor/Special
Servicer as to the Trust (in the
case of the Master Servicers and
the Special Servicer to be
reported by the party controlling
such litigation pursuant to
Section 3.35)
o Each Mortgage Loan Seller (to be
provided by the Depositor)
o Originators under Item 1110 of
Regulation AB (to be provided by
the Depositor)
o Party under Item 1100(d)(1) of
Regulation AB (to be provided by
the Depositor)
Item 3: Sale of Securities and Use o Depositor
of Proceeds
Item 4: Defaults Upon Senior o Trustee
Securities
Item 5: Submission of Matters to a o Trustee
Vote of Security Holders
Item 6: Significant Obligors of N/A
Pool Assets
Item 7: Significant Enhancement N/A
Provider Information
Item 8: Other Information o Any party responsible for
(information required to be disclosure items on Form 8-K to
disclosed on Form 8-K that was not the extent of such items
properly disclosed)
Item 9: Exhibits o Depositor
o Trustee
SCHEDULE IV
Additional Form 10-K Disclosure
The parties identified in the "Party Responsible" column (with each Servicing
Function Participant deemed to be responsible for the following items for which
the party that retained such Servicing Function Participant is responsible) are
obligated pursuant to Section 10.7 of the Pooling and Servicing Agreement to
disclose to the Depositor and the Trustee any information described in the
corresponding Form 10-K Item described in the "Item on Form 10-K" column to the
extent such party has actual knowledge (and in the case of financial statements
required to be provided in connection with 1112(b) below, possession) of such
information (other than information as to itself).
Item on Form 10-K Party Responsible
Item 1B: Unresolved Staff Comments o Depositor
Item 9B: Other Information o Any party responsible for
(information required to be disclosure items on Form 8-K to
disclosed on Form 8-K that was not the extent of such items
properly disclosed)
Item 15: Exhibits, Financial o Trustee
Statement Schedules o Depositor
Additional Item: o Master Servicer (as to itself)
Disclosure per Item 1117 of o Special Servicer (as to itself)
Regulation AB (to the extent o Trustee (as to itself)
material to Certificateholders) o Depositor (as to itself)
o Any other Reporting Servicer (as
to itself)
o Trustee/ Master
Servicer/Depositor/Special
Servicer as to the Trust (in the
case of the Master Servicers and
the Special Servicer to be
reported by the party controlling
such litigation pursuant to
Section 3.35)
o Each Mortgage Loan Seller (to be
provided by the Depositor)
o Originators under Item 1110 of
Regulation AB (to be provided by
the Depositor)
o Party under Item 1100(d)(1) of
Regulation AB (to be provided by
the Depositor)
Additional Item: o Master Servicer (as to itself) (to
Disclosure per Item 1119 of the extent material to
Regulation AB Certificateholders and only as to
affiliations under 1119(a) with
the Trustee, Special Servicer or a
sub-servicer meeting any of the
descriptions in Item 1108(a)(3))
o Special Servicer (as to itself)
(to the extent material to
Certificateholders and only as to
affiliations under 1119(a) with
the Trustee, Master Servicers or a
sub-servicer meeting any of the
descriptions in Item 1108(a)(3))
o Trustee (as to itself) (to the
extent material to
Certificateholders)
o Depositor (as to itself)
o Trustee/ Master
Servicer/Depositor/Special
Servicer as to the Trust
o Each Mortgage Loan Seller (to be
provided by the Depositor) (as to
itself)
o Originators under Item 1110 of
Regulation AB (to be provided by
the Depositor)
o Party under Item 1100(d)(1) of
Regulation AB (to be provided by
the Depositor)
Additional Item: N/A
Disclosure per Item 1112(b) of
Regulation AB
Additional Item: o Depositor
Disclosure per Items 1114(b)(2) and
1115(b) of Regulation AB
SCHEDULE V
Form 8-K Disclosure Information
The parties identified in the "Party Responsible" column (with each Servicing
Function Participant deemed to be responsible for the following items for which
the party that retained such Servicing Function Participant is responsible) are
obligated pursuant to Section 10.9 of the Pooling and Servicing Agreement to
report to the Depositor and the Trustee the occurrence of any event described in
the corresponding Form 8-K Item described in the "Item on Form 8-K" column to
the extent such party has actual knowledge of such information (other than
information as to itself).
Item on Form 10-K Party Responsible
Item 1.01- Entry into a Material o Trustee/ Master
Definitive Agreement Servicer/Depositor/Special
Servicer as to the Trust (only as
to the agreements such entity is a
party to or entered into on behalf
of the Trust)
Item 1.02- Termination of a o Trustee/ Master
Material Definitive Agreement Servicer/Depositor/Special
Servicer as to the Trust (only as
to the agreements such entity is a
party to or entered into on behalf
of the Trust)
Item 1.03- Bankruptcy or o Depositor
Receivership
Item 2.04- Triggering Events that o Depositor
Accelerate or Increase a Direct o Trustee
Financial Obligation or an
Obligation under an Off-Balance
Sheet Arrangement
Item 3.03- Material Modification to o Trustee
Rights of Security Holders
Item 5.03- Amendments of Articles o Depositor
of Incorporation or Bylaws; Change
of Fiscal Year
Item 6.01- ABS Informational and o Depositor
Computational Material
Item 6.02- Change of Servicer or o Master Servicer (as to itself or a
Trustee servicer retained by it)
o Special Servicer (as to itself or
a servicer retained by it)
o Trustee
o Depositor
Item 6.03- Change in Credit o Depositor
Enhancement or External Support o Trustee
Item 6.04- Failure to Make a o Trustee
Required Distribution
Item 6.05- Securities Act Updating o Depositor
Disclosure
Item 7.01- Regulation FD Disclosure o Depositor
Item 8.01 o Depositor
Item 9.01 o Depositor
SCHEDULE VI
Class XP Reference Rates
Period Schedule Period Schedule
------ -------- ------ --------
0 45 6.072600%
1 6.274500% 46 6.272300%
2 6.074900% 47 6.272200%
3 6.074800% 48 6.072400%
4 6.074800% 49 6.272100%
5 6.074900% 50 6.072300%
6 6.274400% 51 6.072200%
7 6.074800% 52 6.074100%
8 6.274400% 53 6.074400%
9 6.074800% 54 6.273900%
10 6.274400% 55 6.074100%
11 6.274400% 56 6.273900%
12 6.074700% 57 6.074000%
13 6.274400% 58 6.273900%
14 6.074700% 59 6.273800%
15 6.274300% 60 6.123000%
16 6.074500% 61 6.324400%
17 6.074700% 62 6.123300%
18 6.274100% 63 6.323700%
19 6.074400% 64 6.122700%
20 6.274000% 65 6.123200%
21 6.074200% 66 6.323900%
22 6.273900% 67 6.122800%
23 6.273800% 68 6.324000%
24 6.074000% 69 6.122900%
25 6.273700% 70 6.324000%
26 6.073900% 71 6.324100%
27 6.073800% 72 6.123000%
28 6.073800% 73 6.324200%
29 6.074700% 74 6.123000%
30 6.273400% 75 6.122900%
31 6.073600% 76 6.122900%
32 6.273200% 77 6.123900%
33 6.073500% 78 6.324500%
34 6.273100% 79 6.123400%
35 6.273100% 80 6.323100%
36 6.073300% 81 6.122100%
37 6.272900% 82 6.325100%
38 6.073100% 83 6.323700%
39 6.073000% 84 6.122600%
40 6.073000% 85 6.325600%
41 6.074600% 86 6.124500%
42 6.272600% 87 6.124500%
43 6.072800% 88 6.124500%
44 6.272400% 89 6.125700%
Period Schedule Period Schedule
------ -------- ------ --------
90 6.325800% 140 6.784900%
91 6.124700% 141 6.578000%
92 6.325900% 142 6.785900%
93 6.124800% 143 6.786500%
94 6.326000% 144 6.579500%
95 6.326100% 145 6.787600%
96 6.124900% 146 6.580500%
97 6.326200% 147 6.581000%
98 6.125000% 148 6.581500%
99 6.125100% 149 6.582400%
100 6.125100% 150 6.790400%
101 6.126400% 151 6.583100%
102 6.327100% 152 6.791600%
103 6.125900% 153 6.584200%
104 6.328200% 154 6.792800%
105 6.133600% 155 6.793300%
106 6.335100% 156 6.585800%
107 6.335100% 157 6.794500%
108 6.133800% 158 6.586900%
109 6.335300% 159 6.795800%
110 6.133900% 160 6.588000%
111 6.335500% 161 6.588700%
112 6.135100% 162 6.797600%
113 6.138300% 163 6.589700%
114 6.337300% 164 6.798900%
115 6.121300% 165 6.590800%
116 6.313500% 166 6.800100%
117 6.103600% 167 6.800800%
118 6.302600% 168 6.592600%
119 6.287800% 169 6.802100%
120 6.153300% 170 6.593800%
121 6.554200% 171 6.594400%
122 6.565700% 172 6.595000%
123 6.566200% 173 6.596000%
124 6.566600% 174 6.805400%
125 6.567300% 175 6.596800%
126 6.774300% 176 6.948800%
127 6.567800% 177 5.824000%
128 6.775200% 178 5.824000%
129 6.568700% 179 5.824000%
130 6.776100% 180 5.824000%
131 6.776600% 181 5.824000%
132 6.569900% 182 5.824000%
133 6.777500% 183 5.824000%
134 6.570800% 184 5.824000%
135 6.571200% 185 5.824000%
136 6.571700% 186 5.824000%
137 6.572500% 187 5.824000%
138 6.780000% 188 5.824000%
139 6.573100% 189 5.824000%
Period Schedule Period Schedule
------ -------- ------ --------
190 5.824000% 240 5.824000%
191 5.824000% 241 5.824000%
192 5.824000% 242 5.824000%
193 5.824000% 243 5.824000%
194 5.824000% 244 5.824000%
195 5.824000% 245 5.824000%
196 5.824000% 246 5.824000%
197 5.824000% 247 5.824000%
198 5.824000% 248 5.824000%
199 5.824000% 249 5.824000%
200 5.824000% 250 5.824000%
201 5.824000% 251 5.824000%
202 5.824000% 252 5.824000%
203 5.824000% 253 5.824000%
204 5.824000% 254 5.824000%
205 5.824000% 255 5.824000%
206 5.824000% 256 5.824000%
207 5.824000% 257 5.824000%
208 5.824000% 258 5.824000%
209 5.824000% 259 5.824000%
210 5.824000% 260 5.824000%
211 5.824000% 261 5.824000%
212 5.824000% 262 5.824000%
213 5.824000% 263 5.824000%
214 5.824000% 264 5.824000%
215 5.824000% 265 5.824000%
216 5.824000% 266 5.824000%
217 5.824000% 267 5.824000%
218 5.824000% 268 5.824000%
219 5.824000% 269 5.824000%
220 5.824000% 270 5.824000%
221 5.824000% 271 5.824000%
222 5.824000% 272 5.824000%
223 5.824000% 273 5.824000%
224 5.824000% 274 5.824000%
225 5.824000% 275 5.824000%
226 5.824000% 276 5.824000%
227 5.824000% 277 5.824000%
228 5.824000% 278 5.824000%
229 5.824000% 279 5.824000%
230 5.824000% 280 5.824000%
231 5.824000% 281 5.824000%
232 5.824000% 282 5.824000%
233 5.824000% 283 5.824000%
234 5.824000% 284 5.824000%
235 5.824000% 285 5.824000%
236 5.824000% 286 5.824000%
237 5.824000% 287 5.824000%
238 5.824000% 288 5.824000%
239 5.824000% 289 5.824000%
Period Schedule Period Schedule
------ -------- ------ --------
290 5.824000% 303 5.824000%
291 5.824000% 304 5.824000%
292 5.824000% 305 5.824000%
293 5.824000% 306 5.824000%
294 5.824000% 307 5.824000%
295 5.824000% 308 5.824000%
296 5.824000% 309 5.824000%
297 5.824000% 310 5.824000%
298 5.824000% 311 5.824000%
299 5.824000% 312 5.824000%
300 5.824000% 313 5.824000%
301 5.824000% 314 0.000000%
302 5.824000%
