Exhibit 4.1
Pooling and Servicing Agreement
See attached
<PAGE>
================================================================================
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION,
Depositor
CAPMARK FINANCE, INC.,
a Master Servicer
WACHOVIA BANK, NATIONAL ASSOCIATION
a Master Servicer
J.E. ROBERT 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
================================================================================
<PAGE>
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 Sarbanes-Oxley
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.........................................
<PAGE>
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
<PAGE>
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"), J.E. Robert
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
XA-D-1
LA-D-2
$3,180,128.21
XA-D-2
LA-D-3
$41,484,102.56
XA-D-3
LA-D-4
$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 A-3
LA-3
$91,400,000
XA-3
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
XA-1S-2
LA-1S-3
$2,697,000
XA-1S-3
LA-1S-4
$3,134,000
XA-1S-4
LA-1S-5
$3,093,000
XA-1S-5
LA-1S-6
$2,996,000
XA-1S-6
LA-1S-7
$2,987,000
XA-1S-7
LA-1S-8
$2,902,000
XA-1S-8
LA-1S-9
$2,968,000
XA-1S-9
LA-1S-10
$11,126,000
XA-1S-10
LA-1S-11
$2,834,000
XA-1S-11
LA-1S-12
$2,741,000
XA-1S-12
LA-1S-13
$2,712,000
XA-1S-13
LA-1S-14
$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
1111 Marcus
Avenue Mortgage Loan, the "1111 Marcus Avenue Whole Loan"), which
is subordinate
to the 1111 Marcus Avenue Mortgage Loan. The 1111 Marcus Avenue
Whole Loan will
be serviced pursuant to this Agreement and the 1111 Marcus Avenue
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 1111 Marcus Avenue 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 1111 Marcus Avenue B Loan.
"1111 Marcus Avenue Control Appraisal Event": As defined in the
1111
Marcus Avenue 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 unreimbursed P&I 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 1111 Marcus Avenue 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 New York, New York, Chicago, Illinois 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 New York, New York, Chicago, Illinois 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
-------------------------------------------------------
----------------------
XA-1 -2, XA-D-2, XA-1A-2 and XA-1S-2
May 2007
XA-1-3, XA-D-3, XA-1A-3 and XA-1S-3
November 2007
XA-1-4, XA-D-4, XA-1A-4, XA-1S-4 and XA-2-1
May 2008
XA-1A-5, XA-1S-5, XA-2-2, XL-1, X-M and XN
November 2008
XA-1A-6, XA-1S-6, XA-2-3, XK-1 and XL-2
May 2009
XA-1A-7, XA-1S-7, XA-2-4, XJ-1 and XK-2
November 2009
XA-1A-8, XA-1S-8, XA-2-5, XH-1 and XJ-2
May 2010
XA-1A-9, XA-1S-9, XA-AB, XA-2-6, XA-3, XA-4-1 and XH-2 November 2010
XA-1A-10, XA-1S-10, XA-4-2, XA-5-1, XG-1 and XH-3
May 2011
XA-1A-11, XA-1S-11, XA-5-2 and XG-2
November 2011
XA-1A-12, XA-1S-12, XA-5-3, XF-1 and XG-3
May 2012
XA-1A-13, XA-1S-13, XA-4-4, XA-5-4, XE-1 and XF-2
November 2012
XA-1A-14, XA-1S-14, XA-5-5, XD-1 and XE-2
May 2013
XA-1A-15, XA-1S-15, XA-5-6, XA-M, XA-J, XB, XC and XD-2
November
2013
Class XP Component Class XP Component Crossover Date XA-1 -2,
XA-D-2, XA-1A-2 and XA-1S-2 May 2007 XA-1-3, XA-D-3, XA-1A-3 and
XA-1S-3
November 2007 XA-1-4, XA-D-4, XA-1A-4, XA-1S-4 and XA-May 2008
XA-1A-5, XA-1S-5,
XA-2-2, XL-1, X-M and November 2008 XA-1A-6, XA-1S-6, XA-2-3, XK-1
and XL-2 May
2009 XA-1A-7, XA-1S-7, XA-2-4, XJ-1 and XK-2 November 2009 XA-1A-8,
XA-1S-8,
XA-2-5, XH-1 and XJ-2 May 2010 XA-1A-9, XA-1S-9, XA-AB, XA-2-6,
XA-3,
XNovemberd20102 XA-1A-10, XA-1S-10, XA-4-2, XA-5-1, XG-1Mayd20113
XA-1A-11,
XA-1S-11, XA-5-2 and XG-2 November 2011 XA-1A-12, XA-1S-12, XA-5-3,
XF-1 and
XG-May 2012 XA-1A-13, XA-1S-13, XA-4-4, XA-5-4, XE-1November22012
XA-1A-14,
XA-1S-14, XA-5-5, XD-1 and XE-May 2013 XA-1A-15, XA-1S-15, XA-5-6,
XA-M, XA-J,
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 XA-1A-2, Component XA-1A-3, Component XA-1A-4, Component
XA-1A-5,
Component XA-1A-6, Component XA-1A-7, Component XA-1A-8, Component
XA-1A-9,
Component XA-1A-10, Component XA-1A-11, Component XA-1A-12,
Component XA-1A-13,
Component XA-1A-14, Component XA-1A-15, Component XA-1S-2,
Component XA-1S-3,
Component XA-1S-4, Component XA-1S-5, Component XA-1S-6, Component
XA-1S-7,
Component XA-1S-8, Component XA-1S-9, 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 XA-2-1, Component XA-2-2, Component XA-2-3, Component
XA-2-4,
Component XA-2-5, Component XA-2-6, Component XA-3, Component
XA-AB, Component
XA-4-1, Component XA-4-2, Component XA-5-1, Component XA-5-2,
Component XA-5-3,
Component XA-5-4, 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 XF-1, Component XF-2, Component
XG-1, Component
XG-2, Component XG-3, Component XH-1, Component XH-2, Component
XH-3, Component
XJ-1, 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 "www.cmbs.org" 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 1111 Marcus Avenue Whole Loan,
the 1111
Marcus Avenue 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 XA-1-1, Component XA-1-2,
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 XA-1A-1, Component XA-1A-2, Component
XA-1A-3,
Component XA-1A-4, Component XA-1A-5, Component XA-1A-6, Component
XA-1A-7,
Component XA-1A-8, Component XA-1A-9, Component XA-1A-10, Component
XA-1A-11,
Component XA-1A-12, Component XA-1A-13, Component XA-1A-14,
Component XA-1A-15,
Component XA-1S-1, Component XA-1S-2, Component XA-1S-3, Component
XA-1S-4,
Component XA-1S-5, Component XA-1S-6, Component XA-1S-7, Component
XA-1S-8,
Component XA-1S-9, 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 XA-2-1,
Component XA-2-2, Component XA-2-3, Component XA-2-4, Component
XA-2-5,
Component XA-2-6, Component XA-3, Component XA-AB, Component
XA-4-1, Component
XA-4-2, Component XA-5-1, Component XA-5-2, Component XA-5-3,
Component XA-5-4,
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 XF-1, Component XF-2, Component XG-1, Component
XG-2, Component
XG-3, Component XH-1, Component XH-2, Component XH-3, Component
XJ-1, 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 Goldman
Sachs
2006-GG8 Controlling Class Representative.
"Corporate Trust Office": The offices of the Trustee located at
135
S. LaSalle St., Chicago, IL 60603, 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 1111
Marcus Avenue
Whole Loan, (i) so long as no 1111 Marcus Avenue Control Appraisal
Event exists,
the 1111 Marcus Avenue B Noteholder, and (ii) so long as a 1111
Marcus Avenue
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
Goldman Sachs 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.
"EDGAR": 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 Moody's (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
Moody's (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 Goldman Sachs
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,
Trepp,
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.
"Goldman Sachs 2006-GG8 Controlling Class Representative": The
controlling class representative appointed under and in accordance
with the
pooling and servicing agreement related to the Goldman 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": J.E. Robert 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": Moody's 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 Moody's, as
applicable,
otherwise
acceptable to S&P or Moody's, 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 Moody's, as applicable, otherwise acceptable to S&P
or
Moody's,
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 Moody's, as applicable, otherwise acceptable
to
S&P or
Moody's, 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
Moody's, as applicable, otherwise acceptable to S&P or Moody's,
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
Moody's, as applicable, otherwise acceptable to S&P or Moody's,
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
Moody's, 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
McGraw-Hill Companies, Inc. or its successor in interest.
"Sarbanes-Oxley Act": The Sarbanes-Oxley Act of 2002 and the
rules
and regulations of the Commission promulgated thereunder (including
any
interpretations thereof by the Commission's staff).
"Sarbanes-Oxley 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 1111 Marcus Avenue 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 1111
Marcus Avenue 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 1111 Marcus Avenue 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
1111 Marcus
Avenue 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 1111 Marcus Avenue B 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": J.E. Robert 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 1111 Marcus Avenue 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
