WACHOVIA COMMERCIAL MORTGAGE SECURITIES,
INC.
Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer
and
CWCAPITAL ASSET MANAGEMENT LLC
Special Servicer
and
WELLS FARGO BANK, N.A.
Trustee
and
U.S. BANK NATIONAL ASSOCIATION
Co-Trustee
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2006
$3,316,568,000
Commercial Mortgage Pass-Through
Certificates
Series 2006-C28
TABLE OF CONTENTS
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Page
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ARTICLE I.
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DEFINITIONS
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5
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Section 1.01.
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Defined Terms
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5
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ARTICLE II.
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CONVEYANCE OF MORTGAGE LOANS;
REPRESENTATIONS AND WARRANTIES; ORIGINAL ISSUANCE OF
CERTIFICATES
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89
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Section 2.01.
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Conveyance of Mortgage
Loans
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89
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Section 2.02.
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Acceptance of the Trust Fund by
Trustee
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91
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Section 2.03.
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Mortgage Loan Seller’s
Repurchase or Substitution of Mortgage Loans for Document Defects
and Breaches of Representations and Warranties
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95
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Section 2.04.
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Representations and Warranties of
Depositor
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99
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Section 2.05.
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Conveyance of Majority Mortgage
Loans and the Four Seasons Resort and Club - Dallas, TX Loan;
Acceptance of the Four Seasons Resort and Club - Dallas, TX Loan
REMIC, REMIC I and Additional Interest Grantor Trust by
Trustee
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101
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Section 2.06.
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Issuance of Four Seasons Resort
and Club - Dallas, TX Loan REMIC Regular Interests
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101
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Section 2.07.
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Conveyance of Four Seasons Resort
and Club - Dallas, TX Loan REMIC Regular Interests; Acceptance of
REMIC I by the Trustee
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102
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Section 2.08.
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Conveyance of Mortgage Loans;
Acceptance of REMIC I and Additional Interest Grantor Trust by
Trustee
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102
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Section 2.09.
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Issuance of the REMIC I Regular
Interests; Execution, Authentication and Delivery of Class R-I
Certificates
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102
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Section 2.10.
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Conveyance of REMIC I
Regular Interests; Acceptance of REMIC II by
Trustee
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102
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Section 2.11.
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Execution, Authentication and
Delivery of REMIC II Certificates; Class A-4FL Regular
Interest
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103
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Section 2.12.
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Execution, Authentication and
Delivery of Class A-4FL Certificates
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103
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Section 2.13.
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Execution, Authentication and
Delivery of Class Z Certificates
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103
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ARTICLE III.
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ADMINISTRATION AND SERVICING OF THE TRUST
FUND
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103
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Section 3.01.
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Administration of the Mortgage
Loans
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103
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Section 3.02.
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Collection of Mortgage Loan
Payments
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107
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-i-
TABLE OF CONTENTS
(continued)
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Section 3.03.
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Collection of Taxes, Assessments
and Similar Items; Servicing Accounts; Reserve Accounts
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109
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Section 3.04.
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Certificate Account, Interest
Reserve Account, Gain-on-Sale Reserve Account, Additional Interest
Account, Distribution Account, Companion Distribution Account and
Floating Rate Interest Shortfall Account
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113
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Section 3.05.
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Permitted Withdrawals from the
Certificate Account, Distribution Account, Interest Reserve
Account, Additional Interest Account, Gain-on-Sale Reserve Account,
Companion Distribution Account and Floating Rate Interest Shortfall
Account
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118
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Section 3.06.
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Investment of Funds in the
Servicing Accounts, Reserve Accounts, Floating Rate Account,
Certificate Account, Interest Reserve Account, Distribution
Account, Companion Distribution Account, Additional Interest
Account, Gain-on-Sale Reserve Account and REO Account
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128
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Section 3.07.
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Maintenance of Insurance
Policies; Errors and Omissions and Fidelity Coverage
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130
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Section 3.08.
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Enforcement of Alienation
Clauses
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133
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Section 3.09.
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Realization Upon Defaulted
Mortgage Loans; Required Appraisals
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137
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Section 3.10.
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Trustee and Custodian to
Cooperate; Release of Mortgage Files
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141
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Section 3.11.
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Servicing Compensation
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142
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Section 3.12.
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Property Inspections; Collection
of Financial Statements; Delivery of Certain Reports
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146
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Section 3.13.
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Annual Reports on Assessment of
Compliance with Servicing Criteria and Annual Statement as to
Compliance
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150
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Section 3.14.
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Attestation by Independent Public
Accountants
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152
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Section 3.15.
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Access to Certain
Information
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153
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Section 3.16.
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Title to REO Property; REO
Account
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157
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Section 3.17.
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Management of REO
Property
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159
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Section 3.18.
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Resolution of Defaulted Mortgage
Loans and REO Properties
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162
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Section 3.19.
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Additional Obligations of Master
Servicer and Special Servicer
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167
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Section 3.20.
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Modifications, Waivers,
Amendments and Consents
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168
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Section 3.21.
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Transfer of Servicing Between
Master Servicer and Special Servicer; Record Keeping
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175
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-ii-
TABLE OF CONTENTS
(continued)
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Section 3.22.
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Sub-Servicing
Agreements
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179
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Section 3.23.
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Representations and Warranties of
Master Servicer and Special Servicer
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182
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Section 3.24.
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Sub-Servicing Agreement
Representation and Warranty
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185
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Section 3.25.
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Designation of Controlling Class
Representative
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185
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Section 3.26.
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Companion Paying Agent
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188
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Section 3.27.
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Companion Register
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188
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Section 3.28.
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Future Debt Secured by Interests
in Related Borrowers
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189
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Section 3.29.
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Certain Matters Relating to the
Future Securitization of the Serviced Pari Passu Companion
Loans
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189
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Section 3.30.
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Litigation Control
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193
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Section 3.31.
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Swap Contract
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195
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ARTICLE IV.
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DISTRIBUTIONS TO CERTIFICATEHOLDERS
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197
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Section 4.01.
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Distributions
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197
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Section 4.02.
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Statements to Certificateholders;
CMSA Loan Periodic Update File
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217
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Section 4.03.
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P&I Advances
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223
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Section 4.04.
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Allocation of Realized Losses and
Additional Trust Fund Expenses; Allocation of Certificate Deferred
Interest; Allocation of Appraisal Reduction Amounts
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227
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Section 4.05.
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Calculations
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230
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Section 4.06.
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Use of Agents
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231
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ARTICLE V.
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THE CERTIFICATES
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231
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Section 5.01.
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The Certificates
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231
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Section 5.02.
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Registration, Transfer and
Exchange of Certificates
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232
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Section 5.03.
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Book-Entry
Certificates
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238
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Section 5.04.
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Mutilated, Destroyed, Lost or
Stolen Certificates
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240
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Section 5.05.
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Persons Deemed Owners
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240
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ARTICLE VI.
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THE DEPOSITOR, THE MASTER
SERVICER, THE SPECIAL SERVICER AND THE CONTROLLING CLASS
REPRESENTATIVE
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240
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Section 6.01.
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Liability of Depositor, Master
Servicer and Special Servicer
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240
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-iii-
TABLE OF CONTENTS
(continued)
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Section 6.02.
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Merger, Consolidation or
Conversion of Depositor or Master Servicer or Special
Servicer
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240
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Section 6.03.
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Limitation on Liability of
Depositor, Master Servicer and Special Servicer
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241
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Section 6.04.
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Resignation of Master Servicer
and the Special Servicer
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242
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Section 6.05.
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Rights of Depositor and Trustee
in Respect of Master Servicer and the Special Servicer
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243
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Section 6.06.
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Depositor, Master Servicer and
Special Servicer to Cooperate with Trustee
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244
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Section 6.07.
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Depositor, Master Servicer,
Special Servicer and Trustee to Cooperate with
Co-Trustee
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244
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Section 6.08.
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Depositor, Special Servicer,
Trustee and Co-Trustee to Cooperate with Master Servicer
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244
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Section 6.09.
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Depositor, Master Servicer,
Trustee and Co-Trustee to Cooperate with Special
Servicer
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244
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Section 6.10.
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Designation of Special Servicer
by the Controlling Class and Controlling Holders
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244
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Section 6.11.
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Master Servicer or Special
Servicer as Owner of a Certificate
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245
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Section 6.12.
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The Controlling Class
Representative
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246
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ARTICLE VII.
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DEFAULT
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249
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Section 7.01.
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Events of Default
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249
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Section 7.02.
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Co-Trustee or Trustee to Act;
Appointment of Successor
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254
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Section 7.03.
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Notification to
Certificateholders and Companion Holders
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256
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Section 7.04.
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Waiver of Events of
Default
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256
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Section 7.05.
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Additional Remedies of Trustee
Upon Event of Default
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256
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ARTICLE VIII.
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CONCERNING THE TRUSTEE AND THE
CO-TRUSTEE
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257
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Section 8.01.
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Duties of Trustee and
Co-Trustee
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257
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Section 8.02.
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Certain Matters Affecting Trustee
and Co-Trustee
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258
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Section 8.03.
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Trustee Not Liable for Validity
or Sufficiency of Certificates or Mortgage Loans
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260
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Section 8.04.
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Trustee and Co-Trustee May Own
Certificates
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260
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Section 8.05.
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Fees and Expenses of Trustee and
Co-Trustee; Indemnification of Trustee and Co-Trustee
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260
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Section 8.06.
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Eligibility Requirements for
Trustee and Co-Trustee
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261
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-iv-
TABLE OF CONTENTS
(continued)
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Section 8.07.
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Resignation and Removal of
Trustee or Co-Trustee
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262
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Section 8.08.
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Successor Trustee or
Co-Trustee
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264
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Section 8.09.
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Merger or Consolidation of
Trustee or Co-Trustee
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264
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Section 8.10.
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Appointment of Additional
Co-Trustee or Separate Trustee
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264
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Section 8.11.
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Appointment of
Custodians
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266
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Section 8.12.
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Appointment of Authenticating
Agents
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267
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Section 8.13.
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Access to Certain
Information
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268
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Section 8.14.
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Appointment of
REMIC Administrators
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268
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Section 8.15.
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Representations and Warranties of
Trustee
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269
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Section 8.16.
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Representations and Warranties of
Co-Trustee
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270
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Section 8.17.
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Appointment of the Paying
Agent
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271
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Section 8.18.
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Reports to the Securities and
Exchange Commission; Available Information
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272
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Section 8.19.
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Maintenance of Mortgage
File
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283
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ARTICLE IX.
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TERMINATION
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283
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Section 9.01.
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Termination Upon Repurchase or
Liquidation of All Mortgage Loans
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283
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Section 9.02.
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Additional Termination
Requirements
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287
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ARTICLE X.
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ADDITIONAL TAX PROVISIONS
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288
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Section 10.01.
|
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REMIC Administration
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288
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Section 10.02.
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Administration of the Additional
Interest Grantor Trust
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293
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ARTICLE XI.
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MISCELLANEOUS PROVISIONS
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295
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Section 11.01.
|
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Amendment
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295
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Section 11.02.
|
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Recordation of Agreement;
Counterparts
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297
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Section 11.03.
|
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Limitation on Rights of
Certificateholders
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298
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Section 11.04.
|
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Governing Law
|
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299
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Section 11.05.
|
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Notices
|
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299
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Section 11.06.
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Severability of
Provisions
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300
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Section 11.07.
|
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Grant of a Security
Interest
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300
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Section 11.08.
|
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Streit Act
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300
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Section 11.09.
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Successors and Assigns;
Beneficiaries
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301
|
-v-
TABLE OF CONTENTS
(continued)
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Section 11.10.
|
|
Article and
Section Headings
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301
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Section 11.11.
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Notices to Rating
Agencies
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301
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Section 11.12.
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Complete Agreement
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302
|
-vi-
EXHIBITS
|
Exhibit Description
|
|
Exhibit No.
|
|
Section Reference
|
|
|
|
|
|
|
|
Form of Class A-1 Certificate
|
|
A-1
|
|
Section 1.01 Definition of
“Class A-1 Certificate”
|
|
|
|
|
|
|
|
Form of Class A-2 Certificate
|
|
A-2
|
|
Section 1.01 Definition of
“Class A-2 Certificate”
|
|
|
|
|
|
|
|
Form of Class A-PB Certificate
|
|
A-3
|
|
Section 1.01 Definition of
“Class A-PB Certificate”
|
|
|
|
|
|
|
|
Form of Class A-3 Certificate
|
|
A-4
|
|
Section 1.01 Definition of
“Class A-3 Certificate”
|
|
|
|
|
|
|
|
Form of Class A-4 Certificate
|
|
A-5
|
|
Section 1.01 Definition of
“Class A-4 Certificate”
|
|
|
|
|
|
|
|
Form of Class A-4FL Certificate
|
|
A-6
|
|
Section 1.01 Definition of
“Class A-4FL Certificate”
|
|
|
|
|
|
|
|
Form of Class A-1A Certificate
|
|
A-7
|
|
Section 1.01 Definition of
“Class A-1A Certificate”
|
|
|
|
|
|
|
|
Form of Class IO Certificate
|
|
A-8
|
|
Section 1.01 Definition of
“Class IO Certificate”
|
|
|
|
|
|
|
|
Form of Class A-M Certificate
|
|
A-9
|
|
Section 1.01 Definition of
“Class A-M Certificate”
|
|
|
|
|
|
|
|
Form of Class A-J Certificate
|
|
A-10
|
|
Section 1.01 Definition of
“Class A-J Certificate”
|
|
|
|
|
|
|
|
Form of Class B Certificate
|
|
A-11
|
|
Section 1.01 Definition of
“Class B Certificate”
|
|
|
|
|
|
|
|
Form of Class C Certificate
|
|
A-12
|
|
Section 1.01 Definition of
“Class C Certificate”
|
|
|
|
|
|
|
|
Form of Class D Certificate
|
|
A-13
|
|
Section 1.01 Definition of
“Class D Certificate”
|
|
|
|
|
|
|
|
Form of Class E Certificate
|
|
A-14
|
|
Section 1.01 Definition of
“Class E Certificate”
|
|
|
|
|
|
|
|
Form of Class F Certificate
|
|
A-15
|
|
Section 1.01 Definition of
“Class F Certificate”
|
|
|
|
|
|
|
|
Form of Class G Certificate
|
|
A-16
|
|
Section 1.01 Definition of
“Class G Certificate”
|
|
|
|
|
|
|
|
Form of Class H Certificate
|
|
A-17
|
|
Section 1.01 Definition of
“Class H Certificate”
|
-vi-
|
Form of Class J Certificate
|
|
A-18
|
|
Section 1.01 Definition of
“Class J Certificate”
|
|
|
|
|
|
|
|
Form of Class K Certificate
|
|
A-19
|
|
Section 1.01 Definition of
“Class K Certificate”
|
|
|
|
|
|
|
|
Form of Class L Certificate
|
|
A-20
|
|
Section 1.01 Definition of
“Class L Certificate”
|
|
|
|
|
|
|
|
Form of Class M Certificate
|
|
A-21
|
|
Section 1.01 Definition of
“Class M Certificate”
|
|
|
|
|
|
|
|
Form of Class N Certificate
|
|
A-22
|
|
Section 1.01 Definition of
“Class N Certificate”
|
|
|
|
|
|
|
|
Form of Class O Certificate
|
|
A-23
|
|
Section 1.01 Definition of
“Class O Certificate”
|
|
|
|
|
|
|
|
Form of Class P Certificate
|
|
A-24
|
|
Section 1.01 Definition of
“Class P Certificate”
|
|
|
|
|
|
|
|
Form of Class Q Certificate
|
|
A-25
|
|
Section 1.01 Definition of
“Class Q Certificate”
|
|
|
|
|
|
|
|
Form of Class R-I
Certificate
|
|
A-26
|
|
Section 1.01 Definition of
“Class R-I Certificate”
|
|
|
|
|
|
|
|
Form of Class R-II Certificate
|
|
A-27
|
|
Section 1.01 Definition of
“Class R-II Certificate”
|
|
|
|
|
|
|
|
Form of Class Z Certificate
|
|
A-28
|
|
Section 1.01 Definition of
“Class Z Certificate”
|
|
|
|
|
|
|
|
Form of Class FS Certificate
|
|
A-29
|
|
Section 1.01 Definition of
“Class FS Certificate”
|
|
|
|
|
|
|
|
Mortgage Loan Schedule
|
|
B
|
|
Section 1.01 Definition of
“Mortgage Loan Schedule”
|
|
|
|
|
|
|
|
Schedule of Exceptions to Mortgage File
Delivery
|
|
C-1
|
|
Section 2.02(a)
|
|
|
|
|
|
|
|
Form of Custodial Certification
|
|
C-2
|
|
Section 2.02(b)
|
|
|
|
|
|
|
|
Form of Master Servicer Request for
Release
|
|
D-1
|
|
Section 1.01 Definition of
“Request for Release”; Section 2.03(b);
Section 3.10(a); and Section 3.10(b)
|
|
|
|
|
|
|
|
Form of Special Servicer Request for
Release
|
|
D-2
|
|
Section 1.01 Definition of
“Request for Release”; Section 3.10(b)
|
|
|
|
|
|
|
|
Calculation of NOI/Debt Service Coverage
Ratios
|
|
E
|
|
Section 1.01 Definition of
“Net Operating Income”
|
|
|
|
|
|
|
|
Form of Transferor Certificate
|
|
F-1
|
|
Section 5.02(b)
|
|
|
|
|
|
|
|
Form of Transferee Certificate for
QIBs
|
|
F-2
|
|
Section 5.02(b)
|
-vii-
|
Form of Transferee Certificate for
Non-QIBs
|
|
F-3
|
|
Section 5.02(b)
|
|
|
|
|
|
|
|
Form of Transferee Certificate for Transfers
Pursuant to Regulation S
|
|
F-4
|
|
Section 5.02(b)
|
|
|
|
|
|
|
|
Form of Transferee Certificate for Exchange or
Transfer From Domestic Global Certificate to Regulation S Global
Certificate During the Restricted Period
|
|
F-5
|
|
Section 5.02(b)
|
|
|
|
|
|
|
|
Form of Transferee Certificate for Exchange or
Transfer From Domestic Global Certificate to Regulation S Global
Certificate After the Restricted Period
|
|
F-6
|
|
Section 5.02(b)
|
|
|
|
|
|
|
|
Form of Transferee Certificate
|
|
G
|
|
Section 5.02(c)
|
|
|
|
|
|
|
|
Form of Transfer Affidavit and Agreement
Pursuant to Section 5.02(d)(i)(B)
|
|
H-1
|
|
Section 5.02(d)(i)(B)
|
|
|
|
|
|
|
|
Form of Transferor Certificate Pursuant to
Section 5.02(d)(i)(D)
|
|
H-2
|
|
Section 5.02(d)(i)(D)
|
|
|
|
|
|
|
|
Form of Notice and Acknowledgment
|
|
I-1
|
|
Section 6.09
|
|
|
|
|
|
|
|
Form of Acknowledgment of Proposed Special
Servicer
|
|
I-2
|
|
Section 6.09
|
|
|
|
|
|
|
|
List of Earnout and Holdback Mortgage
Loans
|
|
J
|
|
Section 3.20(j)
|
|
|
|
|
|
|
|
Form of Certificateholder Confirmation
Certificate Request by Beneficial Holder
|
|
K-1
|
|
Section 1.01 Definition of
“Privileged Person”; Section 3.15(a)
|
|
|
|
|
|
|
|
Form of Prospective Purchaser
Certificate
|
|
K-2
|
|
Section 1.01 Definition of
“Privileged Person”; Section 3.15(a)
|
|
|
|
|
|
|
|
Initial Companion Holders
|
|
L
|
|
Section 3.27
|
|
|
|
|
|
|
|
Form of Purchase Option Notice
|
|
M
|
|
Section 3.18(e)
|
|
|
|
|
|
|
|
Form of Defeasance Certificate
|
|
N
|
|
Section 3.20(h)
|
|
|
|
|
|
|
|
Form of Depositor Certification
|
|
O
|
|
Section 8.18(k)(v); Section
8.18(n)
|
|
|
|
|
|
|
|
Form of Trustee Certification
|
|
P
|
|
Section 8.18(d)
|
|
|
|
|
|
|
|
Form of Master Servicer
Certification
|
|
Q-1
|
|
Section 8.18(d)
|
-viii-
|
Form of Special Servicer
Certification
|
|
Q-2
|
|
Section 8.18(d)
|
|
|
|
|
|
|
|
Class A-PB Planned Principal Balance
Schedule
|
|
R
|
|
Section 1.01 Definition of
“Class A-PB Planned Principal Amount”
|
|
|
|
|
|
|
|
Relevant Servicing Criteria
|
|
S
|
|
Section 1.01 Definition of
“Relevant Servicing Criteria”
|
|
|
|
|
|
|
|
RESERVED
|
|
T
|
|
|
|
|
|
|
|
|
|
Additional Form 10-D Disclosure
|
|
U
|
|
Section 8.18(i)
|
|
|
|
|
|
|
|
Additional Disclosure Notification
|
|
V
|
|
Section 1.01 Definition of
“Additional Disclosure Notification”; Section
8.18(i)
|
|
|
|
|
|
|
|
Additional Form 10-K Disclosure
|
|
W
|
|
Section 8.18(k)
|
|
|
|
|
|
|
|
Form 8-K Disclosure Information
|
|
X
|
|
Section 8.18(j)
|
|
|
|
|
|
|
|
Sub-Servicer List
|
|
Y
|
|
Section 8.18(f)
|
|
|
|
|
|
|
|
Tenants-in-Common Transfer
Compliance
|
|
Z
|
|
Section 3.08(a)(ii)
|
|
|
|
|
|
|
|
Officer’s Certificate of Master Servicer
re: Tenants-in-Common Approvals
|
|
AA
|
|
Section 3.08(a)(ii)
|
-ix-
POOLING AND SERVICING AGREEMENT
This
Pooling and Servicing Agreement (this “ Agreement
”) is dated and effective as of October 1, 2006, among
WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC., as Depositor,
WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer, CWCAPITAL
ASSET MANAGEMENT LLC, as Special Servicer, WELLS FARGO BANK, N.A.,
as Trustee, and U.S. BANK NATIONAL ASSOCIATION as
Co-Trustee.
PRELIMINARY STATEMENT:
The
Depositor intends to sell mortgage pass-through certificates
(collectively, the “ Certificates ”), to be
issued hereunder in multiple classes (each, a “ Class
”), which in the aggregate will evidence the entire
beneficial ownership interest in a trust fund (the “ Trust
Fund ”) to be created hereunder, the primary assets of
which will be the Mortgage Loans.
An
election will be made to treat the segregated pool of assets
consisting of the Four Seasons Resort and Club - Dallas, TX Loan
and certain other related assets subject to this Agreement as a
REMIC for federal income tax purposes, and such segregated pool of
assets will be designated as the “ Four Seasons Resort and
Club - Dallas, TX Loan REMIC ”. The Class R-I
Certificates will, in part, represent the sole class of
“residual interests” in the Four Seasons Resort and
Club - Dallas, TX Loan REMIC for purposes of the REMIC Provisions
under federal income tax law. The Four Seasons Resort and Club -
Dallas, TX Loan REMIC Pooled Regular Interest and the Class FS-NP
Uncertificated Interest will be the “regular interests”
in the Four Seasons Resort and Club - Dallas, TX Loan REMIC for
purposes of the REMIC Provisions, will not be certificated and will
be held by REMIC I.
The
ownership interest in the Four Seasons Resort and Club - Dallas, TX
Loan, as part of the Four Seasons Resort and Club - Dallas, TX Loan
REMIC related to the Four Seasons Resort and Club - Dallas, TX
Loan, will be split into a senior undivided ownership interest in
the portion of the Four Seasons Resort and Club - Dallas, TX Loan
REMIC related to the Four Seasons Resort and Club - Dallas, TX Loan
(the “ Four Seasons Resort and Club - Dallas, TX Pooled
Component ”) and a subordinate undivided ownership
interest in such portion of the Four Seasons Resort and Club -
Dallas, TX Loan REMIC (the “ Four Seasons Resort and Club
- Dallas, TX Non-Pooled Component ” and, together with
the Four Seasons Resort and Club - Dallas, TX Pooled Component, the
“ Loan Components ”).
The
following table describes certain information regarding the Four
Seasons Resort and Club - Dallas, TX Loan and the Loan
Components:
|
Component
|
|
Component Balance/Original Four Seasons Resort
and Club - Dallas, TX Loan REMIC Principal Amount
|
|
The Four Seasons Resort and Club - Dallas, TX
Loan Remittance Rate*
|
|
Corresponding Four Seasons Resort and Club -
Dallas, TX Loan REMIC Regular Interest
|
|
Related Class of Certificates
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Four Seasons Resort and Club - Dallas, TX
Pooled Component
|
|
$
|
175,000,000
|
|
|
6.230%
|
|
|
Four Seasons Resort and Club - Dallas, TX Loan
REMIC Pooled Regular Interest
|
|
|
N/A
|
|
|
The Four Seasons Resort and Club - Dallas, TX
Non-Pooled Component
|
|
$
|
8,000,000
|
|
|
9.726%
|
|
|
Class FS-NP Uncertificated Interest
|
|
|
Class FS
|
|
|
|
|
*
|
Represents the Net Mortgage Rate
at which interest will accrue on the Four Seasons Resort and Club -
Dallas, TX Loan based on the actual number of days elapsed and a
360-day year.
|
REMIC I
As
provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the Majority Mortgage Loans
(exclusive of that portion of the interest payments thereon that
constitutes Additional Interest), the Four Seasons Resort and Club
- Dallas, TX Loan REMIC Pooled Regular Interest, the Class FS-NP
Uncertificated Interest and certain other related assets subject to
this Agreement as a REMIC for federal income tax purposes, and
such segregated pool of assets will be designated as
REMIC I . The Class R-I Certificates will
represent the sole class of “residual interests” in
REMIC I for purposes of the REMIC Provisions under federal
income tax law. For federal income tax purposes, the
interests defined in the table below the heading “ REMIC
II ” as “Corresponding REMIC I Regular
Interests” are the “ regular interests ”
in REMIC I.
REMIC II
As
provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the REMIC I Regular
Interests as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as
REMIC II. The Class R-II Certificates will evidence
the sole class of “ residual interests ” in
REMIC II for purposes of the REMIC Provisions under federal
income tax law. For federal income tax purposes, each Class
of Regular Certificates and the Class A-4FL Regular Interest
will be designated as a separate “ regular interest
” in REMIC II for purposes of the REMIC Provisions under
federal income tax law. Each of the “Corresponding
Components of Class IO Certificates” is a “ regular
interest ” in REMIC II and the Class IO Certificates
represent such Corresponding Components.
The
following table sets forth the Class or Component designation,
the original REMIC I Principal Balance for each corresponding
REMIC I Regular Interest (the “ Corresponding
REMIC I Regular Interest ”), the Corresponding
Components of the Class IO Certificates (the “
Corresponding Components ”) and the Original Class
Principal Balance for each Class of Sequential Pay Certificates or
the Class FS Certificates, as applicable (the “
Corresponding Certificates ”).
-2-
|
Corresponding
Certificates
|
|
Original Class
Principal
Balance
|
|
Corresponding
REMIC I
Regular
Interests (1)
|
|
Original
REMIC I
Principal
Balance
|
|
REMIC I
Pass-Through
Rate
|
|
Corresponding
Components of
Class IO
Certificates (1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Class A-1
|
|
$
|
38,798,000.00
|
|
|
LA-1
|
|
$
|
38,798,000.00
|
|
|
(2)
|
|
|
IO-A-1
|
|
|
Class A-2
|
|
$
|
418,676,000.00
|
|
|
LA-2
|
|
$
|
418,676,000.00
|
|
|
(2)
|
|
|
IO-A-2
|
|
|
Class A-PB
|
|
$
|
168,389,000.00
|
|
|
LA-PB
|
|
$
|
168,389,000.00
|
|
|
(2)
|
|
|
IO-A-PB
|
|
|
Class A-3
|
|
$
|
215,000,000.00
|
|
|
LA-3
|
|
$
|
215,000,000.00
|
|
|
(2)
|
|
|
IO-A-3
|
|
|
Class A-4
|
|
$
|
802,246,000.00
|
|
|
LA-4
|
|
$
|
802,246,000.00
|
|
|
(2)
|
|
|
IO-A-4
|
|
|
Class A-4FL
|
|
$
|
250,000,000.00
|
|
|
LA-4FL
|
|
$
|
250,000,000.00
|
|
|
(3)
|
|
|
IO-A-4FL
|
|
|
Class A-1A
|
|
$
|
623,528,000.00
|
|
|
LA-1A
|
|
$
|
623,528,000.00
|
|
|
(2)
|
|
|
IO-A-1A
|
|
|
Class A-M
|
|
$
|
359,520,000.00
|
|
|
LA-M
|
|
$
|
359,520,000.00
|
|
|
(2)
|
|
|
IO-A-M
|
|
|
Class A-J
|
|
$
|
278,628,000.00
|
|
|
LA-J
|
|
$
|
278,628,000.00
|
|
|
(2)
|
|
|
IO-A-J
|
|
|
Class B
|
|
$
|
22,470,000.00
|
|
|
LB
|
|
$
|
22,470,000.00
|
|
|
(2)
|
|
|
IO-B
|
|
|
Class C
|
|
$
|
58,422,000.00
|
|
|
LC
|
|
$
|
58,422,000.00
|
|
|
(2)
|
|
|
IO-C
|
|
|
Class D
|
|
$
|
31,458,000.00
|
|
|
LD
|
|
$
|
31,458,000.00
|
|
|
(2)
|
|
|
IO-D
|
|
|
Class E
|
|
$
|
49,433,000.00
|
|
|
LE
|
|
$
|
49,433,000.00
|
|
|
(2)
|
|
|
IO-E
|
|
|
Class F
|
|
$
|
40,446,000.00
|
|
|
LF
|
|
$
|
40,446,000.00
|
|
|
(2)
|
|
|
IO–F
|
|
|
Class G
|
|
$
|
40,446,000.00
|
|
|
LG
|
|
$
|
40,446,000.00
|
|
|
(2)
|
|
|
IO-G
|
|
|
Class H
|
|
$
|
40,446,000.00
|
|
|
LH
|
|
$
|
40,446,000.00
|
|
|
(2)
|
|
|
IO-H
|
|
|
Class J
|
|
$
|
44,940,000.00
|
|
|
LJ
|
|
$
|
44,940,000.00
|
|
|
(2)
|
|
|
IO-J
|
|
|
Class K
|
|
$
|
17,976,000.00
|
|
|
LK
|
|
$
|
17,976,000.00
|
|
|
(2)
|
|
|
IO-K
|
|
|
Class L
|
|
$
|
8,988,000.00
|
|
|
LL
|
|
$
|
8,988,000.00
|
|
|
(2)
|
|
|
IO-L
|
|
|
Class M
|
|
$
|
13,482,000.00
|
|
|
LM
|
|
$
|
13,482,000.00
|
|
|
(2)
|
|
|
IO-M
|
|
|
Class N
|
|
$
|
4,494,000.00
|
|
|
LN
|
|
$
|
4,494,000.00
|
|
|
(2)
|
|
|
IO-N
|
|
|
Class O
|
|
$
|
8,988,000.00
|
|
|
LO
|
|
$
|
8,988,000.00
|
|
|
(2)
|
|
|
IO-O
|
|
|
Class P
|
|
$
|
8,988,000.00
|
|
|
LP
|
|
$
|
8,988,000.00
|
|
|
(2)
|
|
|
IO-P
|
|
|
Class Q
|
|
$
|
49,434,700.61
|
|
|
LQ
|
|
$
|
49,434,700.61
|
|
|
(2)
|
|
|
IO-Q
|
|
|
Class FS
|
|
$
|
8,000,000
|
|
|
LFS
|
|
$
|
8,000,000
|
|
|
(4)
|
|
|
N/A
|
|
|
|
|
(1)
|
The REMIC I Regular Interest
and the Component of the Class IO Certificates that
corresponds to any particular Class of Sequential Pay Certificates,
or the Class FS Certificates, as applicable, also correspond to
each other and, accordingly, constitute the Corresponding
REMIC I Regular Interest and the Corresponding Component (if
any), respectively, with respect to each other.
|
|
|
|
|
(2)
|
The Weighted Average Net Mortgage
Rate.
|
|
|
|
|
(3)
|
REMIC I Regular Interest LA-4FL
does not correspond to any Class of Certificates, but rather
corresponds to the Class A-4FL Regular Interest.
|
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|
|
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(4)
|
The Pass Through Rate for the
Class FS Certificates
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-3-
The
portion of the Trust Fund consisting of the Additional Interest and
amounts held from time to time in the Additional Interest Account
that represent Additional Interest shall be treated as a grantor
trust (the “ Additional Interest Grantor Trust
”) for federal income tax purposes. The Class Z
Certificates represent undivided beneficial interests in such
Additional Interest Grantor Trust. The Class A-4FL
Regular Interest, the Swap Contract, the Floating Rate Account and
the proceeds thereof shall be treated as another grantor trust (the
“ A-4FL Grantor Trust ”) for federal income tax
purposes. The Class A-4FL Certificates represent an
undivided beneficial interest in the Class A-4FL Grantor
Trust. As provided herein, the Trustee shall take all actions
necessary to ensure that the portions of the Trust Fund consisting
of the Grantor Trusts maintain their respective status as a
“grantor trust” under federal income tax law and not be
treated as part of the Four Seasons Resort and Club – Dallas,
TX Loan REMIC, REMIC I or REMIC II. The Class Z
Certificates represent undivided beneficial interests in the
Additional Interest Grantor Trust.
Each
of the eight (8) mortgage loans referred to in this Agreement as
The Gas Company Tower Pari Passu Companion Loan, the Montclair
Plaza Companion Loan, the 311 South Wacker Pari Passu Companion
Loan, the RLJ Hotel Pool Pari Passu Companion Loan, the
500–512 Seventh Avenue Pari Passu Companion Loan, the Newport
Bluffs Pari Passu Companion Loan, the Gateway Center Companion Loan
and the Bold Concepts Building Companion Loan (each, a “
Companion Loan ” and, collectively, the “
Companion Loans ”) are not part of the Trust Fund but
are secured by corresponding Mortgages that secure certain related
Mortgage Loans that are identified on the Mortgage Loan Schedule as
The Gas Company Tower Loan (loan number 1), the Montclair Plaza
Loan (loan number 3), the 311 South Wacker Loan (loan number 5),
the RLJ Hotel Pool Loan (loan number 6), the 500–512 Seventh
Avenue Loan (loan number 7)(with respect to each of the 500-512
Seventh Avenue Pari Passu Companion Loan and the 500-512 Seventh
Avenue Subordinate Companion Loan), the Newport Bluffs Loan (loan
number 8), and the Gateway Center Loan (loan number 49) and the
Bold Concepts Building Loan (loan number 126) (each, a “
Co-Lender Loan ” and collectively, the “
Co-Lender Loans ”) that are part of the Trust
Fund.
The
Gas Company Tower Loan and The Gas Company Tower Pari Passu
Companion Loan are pari passu with each other. The 311
South Wacker Loan and the 311 South Wacker Pari Passu Companion
Loan are pari passu with each other. The RLJ Hotel
Pool Loan and the RLJ Hotel Pool Pari Passu Companion Loan are
pari passu with each other. The 500–512 Seventh
Avenue Loan and the 500–512 Seventh Avenue Pari Passu
Companion Loan are pari passu with each other. The
Newport Bluffs Loan and the Newport Bluffs Pari Passu Companion
Loan are pari passu with each other. As and to the
extent provided herein, each of the Companion Loans, except for The
Gas Company Tower Pari Passu Companion Loan, the RLJ Hotel Pool
Pari Passu Companion Loan and the 500–512 Seventh Avenue Pari
Passu Companion Loan, will be serviced and administered in
accordance with this Agreement. The Gas Company Tower Loan
and The Gas Company Tower Pari Passu Companion Loan will be
serviced and administered in accordance with the pooling and
servicing agreement (the “ J.P. Morgan 2006-LDP8 Pooling
and Servicing Agreement ”), dated as of September 1,
2006, by and among J. P Morgan Chase Commercial Mortgage Securities
Corp., as depositor (the “ J.P. Morgan 2006-LDP8
Depositor ”), Wells Fargo Bank, N.A., as master servicer
no. 1 (the “ J.P. Morgan 2006-LDP8 Master Servicer No.
1 ”), Midland Loan Services, Inc., as master servicer no.
2 (the “ J.P. Morgan 2006-LDP8 Master Servicer No. 2
”, and together with J.P. Morgan
-4-
2006-LDP8 Master Servicer No. 1,
the “ J.P. Morgan 2006-LDP8 Master Servicers ”),
J.E. Robert Company, Inc., as special servicer (the “ J.P.
Morgan 2006-LDP8 Special Servicer ”), and LaSalle Bank
National Association, as trustee (the “ J.P. Morgan
2006-LDP8 Trustee ”), pursuant to which the JP Morgan
Chase Securities Trust 2006-LDP8, Commercial Mortgage Pass-Through
Certificates, Series 2006-LDP8, were issued and the trust fund (the
“ J.P. Morgan 2006-LDP8 Trust Fund ”) was
created. Each of RLJ Hotel Pool Loan, the RLJ Hotel Pool Pari
Passu Companion Loan, the 500–512 Seventh Avenue Loan and the
500–512 Seventh Avenue Pari Passu Companion Loan will be
serviced and administered in accordance with the pooling and
servicing agreement (the “ 2006-C27 Pooling and Servicing
Agreement ”), dated as of August 1, 2006, by and among
Wachovia Commercial Mortgage Securities, Inc., as depositor (the
“ 2006-C27 Depositor ”), Wachovia Bank, National
Association, as master servicer (the “ 2006-C27 Master
Servicer ”), LNR Partners, Inc., as special servicer (the
“ 2006-C27 Special Servicer ”) and Wells Fargo
Bank, N.A., as trustee (the “ 2006-C27 Trustee
”), pursuant to which the Wachovia Bank Commercial Mortgage
Trust Commercial Mortgage Pass Through Certificates, Series
2006-C27 were issued and the trust fund (the “ 2006-C27
Trust Fund ”) was created. Amounts attributable to
the Companion Loans will not be assets of the Trust Fund and will
be owned by the Companion Holders.
The
Four Seasons Resort and Club - Dallas, TX Pooled Component will
have an initial Component Principal Balance of $175,000,000.
The Four Seasons Resort and Club - Dallas, TX Non-Pooled Component
will have an initial Component Principal Balance of
$8,000,000. The Certificates (other than the Class FS
Certificates) will be entitled to distributions from the Four
Seasons Resort and Club - Dallas, TX Pooled Component. The
Class FS Certificates will be entitled to distributions from the
Four Seasons Resort and Club - Dallas, TX Non-Pooled Component
pursuant to Section 4.01(c).
In
consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the
Trustee agree as follows:
ARTICLE I.
DEFINITIONS
Section
1.01. Defined Terms
.
Whenever
used in this Agreement, including in the Preliminary Statement, the
following words and phrases, unless the context otherwise requires,
shall have the meanings specified in this Article.
“
311 South Wacker Loan ”: That certain Mortgage
Loan which is included in the Trust Fund (identified as loan number
5 on the Mortgage Loan Schedule).
“
311 South Wacker Pari Passu Companion Loan ”:
That certain mortgage loan evidenced by a note, which is not an
asset of the Trust Fund, secured by the Mortgaged Property securing
the 311 South Wacker Loan and pari passu in right of
entitlement with the 311 South Wacker Loan.
-5-
“
311 South Wacker Pari Passu Intercreditor Agreement
”: The Intercreditor and Servicing Agreement, dated as
of October 31, 2006, by and between Wachovia Bank, National
Association, as Lead Lender, and Wachovia Bank, National
Association, as Co-Lender relating to the 311 South Wacker Whole
Loan.
“
311 South Wacker Whole Loan ”: The 311 South
Wacker Loan, together with the 311 South Wacker Pari Passu
Companion Loan.
“
2006-C27 Controlling Class Representative ”: The
“Controlling Class Representative” as defined in the
2006-C27 Pooling and Servicing Agreement.
“
2006-C27 Depositor ”: As defined in the
Preliminary Statement.
“
2006-C27 Majority Subordinate Certificateholder
”: The “Majority Subordinate
Certificateholder” as defined in the 2006-C27 Pooling and
Servicing Agreement.
“
2006-C27 Master Servicer ”: As defined in the
Preliminary Statement.
“
2006-C27 Mortgage Loan Purchase Agreement ”: The
“Mortgage Loan Purchase Agreement” as defined in the
2006-C27 Pooling and Servicing Agreement.
“
2006-C27 Pooling and Servicing Agreement ”: As
defined in the Preliminary Statement.
“
2006-C27 Serviced Mortgage Loans ”: The RLJ
Hotel Pool Loan and the 500-512 Seventh Avenue Loan (each, a
“2006-C27 Serviced Mortgage Loan”).
“
2006-C27 Special Servicer ”: As defined in the
Preliminary Statement.
“
2006-C27 Trust Fund ”: As defined in the
Preliminary Statement.
“
2006-C27 Trustee ”: As defined in the
Preliminary Statement.
“
30/360 Basis ”: The accrual of interest
calculated on the basis of a 360-day year consisting of twelve
30-day months.
“
500-512 Seventh Avenue Intercreditor Agreement
”: The Intercreditor and Servicing Agreement, dated as
of July 7, 2006, by and among Wachovia Bank, National Association,
as Lead Lender, Wachovia Bank, National Association, as A-2 Lender
and MW1-2002, LLC, as Co-Lender relating to the 500-512 Seventh
Avenue Whole Loan.
“
500-512 Seventh Avenue Loan ”: That certain
Mortgage Loan which is included in the Trust Fund (identified as
loan number 7 on the Mortgage Loan Schedule).
“
500-512 Seventh Avenue Pari Passu Companion Loan
”: That certain mortgage loan evidenced by a note,
which is not an asset of the Trust Fund, secured by the Mortgaged
Property securing the 500-512 Seventh Avenue Loan and pari
passu in right of entitlement with the 500-512 Seventh Avenue
Loan.
-6-
“
500-512 Seventh Avenue Subordinate Companion Loan
”: That certain mortgage loan evidenced by a note,
which is not an asset of the Trust Fund, secured by the Mortgaged
Property securing the 500-512 Seventh Avenue Loan and subordinate
in right of entitlement with the 500-512 Seventh Avenue Loan and
the 500-512 Seventh Avenue Pari Passu Companion Loan.
“
500-512 Seventh Avenue Whole Loan ”: The 500-512
Seventh Avenue Loan, collectively with the 500-512 Seventh Avenue
Pari Passu Companion Loan and the 500-512 Seventh Avenue
Subordinate Companion Loan.
“
Accrued Certificate Interest ”: With respect to
any Class of Regular Certificates (other than the Class IO
Certificates) and the Class A-4FL Regular Interest for any
Distribution Date, one month’s interest at the Pass-Through
Rate applicable to such Class of Certificates or the
Class A-4FL Regular Interest, as applicable, for such
Distribution Date, accrued for the related Interest Accrual Period
on the related Class Principal Balance outstanding immediately
prior to such Distribution Date; and, with respect to the
Class IO Certificates for any Distribution Date, the sum of
the Accrued Component Interest for the related Interest Accrual
Period for all of the Components for such Distribution Date.
Except with respect to the Class A-4FL Certificates, Accrued
Certificate Interest shall be calculated on a 30/360 Basis and,
with respect to any Class of Regular Certificates for any
Distribution Date, shall be deemed to accrue during the calendar
month preceding the month in which such Distribution Date
occurs. Accrued Certificate Interest with respect to the
Class A-4FL Certificates shall be calculated on an Actual/360
Basis and, for any Distribution Date, shall be deemed to accrue
during the period from and including the Distribution Date in the
month preceding the month in which the related Distribution Date
occurs (or, in the case of the first Distribution Date, the Closing
Date) to but excluding the related Distribution Date;
provided , however , that if a Class A-4FL
Distribution Conversion has occurred, Accrued Certificate Interest
with respect to the Class A-4FL Certificates shall be the same
as for the Class A-4FL Regular Interest.
“
Accrued Component Interest ”: With respect to
each Component of the Class IO Certificates for any
Distribution Date, one month’s interest at the Strip Rate
applicable to such Component for such Distribution Date, accrued on
the Component Notional Amount of such Component outstanding
immediately prior to such Distribution Date. Accrued
Component Interest shall be calculated on a 30/360 Basis and, with
respect to any Component and any Distribution Date, shall be deemed
to accrue during the calendar month preceding the month in which
such Distribution Date occurs.
“
Accrued Four Seasons Resort and Club - Dallas, TX Component
Interest ”: With respect to each Loan Component for
any Distribution Date, one month’s interest at the Four
Seasons Resort and Club - Dallas, TX Loan Remittance Rate for such
Loan Component and such Distribution Date, accrued on an Actual/360
Basis during the one month period immediately preceding such
Distribution Date on the Component Principal Balance of such Loan
Component outstanding immediately after making any allocations or
deemed distributions on the immediately preceding Distribution
Date.
“
Acquisition Date ”: With respect to any REO
Property, the first day on which such REO Property is considered to
be acquired by the Trust Fund within the meaning of
-7-
Treasury Regulations
Section 1.856-6(b)(1), which is the first day on which the
Trust Fund is treated as the owner of such REO Property for federal
income tax purposes.
“
Actual/360 Basis ”: The accrual of interest
calculated on the basis of the actual number of days elapsed during
any calendar month in a year assumed to consist of
360 days.
“
Actual/360 Mortgage Loan ”: Each Mortgage Loan
that accrues interest on an Actual/360 Basis and that is identified
as an Actual/360 Mortgage Loan on the Mortgage Loan
Schedule.
“
Additional Disclosure Notification ”: The form
of notification, which is attached hereto as Exhibit V , to
be included with any Additional Form 10-D Disclosure, Additional
Form 10-K Disclosure or Form 8-K Disclosure Information.
“
Additional Form 10-D Disclosure ”: As defined in
Section 8.18(h).
“
Additional Form 10-K Disclosure ”: As defined in
Section 8.18(j).
“
Additional Interest ”: With respect to any ARD
Loan after its Anticipated Repayment Date, all interest accrued on
the principal balance of such ARD Loan at the Additional Interest
Rate (the payment of which interest shall, under the terms of such
Mortgage Loan, be deferred until the entire outstanding principal
balance of such ARD Loan has been paid), together with all
interest, if any, accrued at the related Mortgage Rate on such
deferred interest. For purposes of this Agreement, Additional
Interest on an ARD Loan or any successor REO Loan shall be deemed
not to constitute principal or any portion thereof and shall not be
added to the unpaid principal balance or Stated Principal Balance
of such ARD Loan or successor REO Loan, notwithstanding that the
terms of the related Mortgage Loan documents so permit. To
the extent that any Additional Interest is not paid on a current
basis, it shall be deemed to be deferred interest.
“
Additional Interest Account ”: The segregated
account, accounts or subaccounts created and maintained by the
Trustee pursuant to Section 3.04(d) which shall be entitled
“Wells Fargo Bank, N.A., as Trustee, in trust for the
registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series 2006-C28,
Additional Interest Account.” The Additional Interest
Account shall not be an asset of any of the Four Seasons Resort and
Club - Dallas, TX Loan REMIC, REMIC I or REMIC II.
“
Additional Interest Grantor Trust ”: That
certain “grantor trust” (within the meaning of the
Grantor Trust Provisions), the assets of which are the Additional
Interest Grantor Trust Assets.
“
Additional Interest Grantor Trust Assets ”: The
segregated pool of assets consisting of (i) any Additional
Interest with respect to the ARD Loans after their respective
Anticipated Repayment Dates and (ii) amounts held from time to
time in the Additional Interest Account.
“
Additional Interest Rate ”: With respect to any
ARD Loan (and each Loan Component) after its Anticipated Repayment
Date, the incremental increase in the per annum
-8-
rate at which such Mortgage Loan
(or each such Loan Component) accrues interest after the
Anticipated Repayment Date (in the absence of defaults) as
calculated and as set forth in the related Mortgage Loan
documents.
“
Additional Servicer ”: Each Affiliate of the
Master Servicer that services any of the Mortgage Loans and each
Person who is not an Affiliate of the Master Servicer, other than
the Special Servicer or the Trustee, who services 10% or more of
the Mortgage Loans.
“
Additional Trust Fund Expense ”: Any Special
Servicing Fees, Workout Fees, Liquidation Fees and, in accordance
with Sections 3.03(d) and 4.03(d), interest payable to the
Master Servicer and/or the Trustee on Advances (to the extent not
offset by Penalty Interest and late payment charges), the cost of
contracting with a Determination Party as set forth in Section 2.03
and amounts payable to the Special Servicer in connection with
inspections of Mortgaged Properties required pursuant to the first
sentence of Section 3.12(a) (and not otherwise paid from
Penalty Interest and late payment charges), as well as (without
duplication) any of the expenses of the Trust Fund that may be
withdrawn (x) pursuant to any of clauses (ix), (x), (xiii),
(xiv), (xv) and (xxi) of Section 3.05(a) out of general
collections on the Mortgage Loans and any REO Properties on deposit
in the Certificate Account or (y) pursuant to clause (ii) or
any of clauses (iv) through (vi) of
Section 3.05(b) out of general collections on the
Mortgage Loans and any REO Properties on deposit in the
Distribution Account; provided that for purposes of the
allocations contemplated by Section 4.04, no such expense
shall be deemed to have been incurred by the Trust Fund until such
time as the payment thereof is actually made from the Certificate
Account or the Distribution Account, as the case may be.
“
Additional Yield Amount ”:
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(a) With
respect to any Distribution Date and any Class of Regular
Certificates (other than the Class IO Certificates, the Class FS
Certificates and any Excluded Class) or the Class A-4FL
Regular Interest entitled to distributions of principal with
respect to Loan Group 1 pursuant to Section 4.01(a) on such
Distribution Date; provided that a Yield Maintenance Charge
and/or Prepayment Premium was actually collected on a Mortgage Loan
or an REO Loan in such Loan Group during the related Collection
Period, the product of (a) such Yield Maintenance Charge and/or
Prepayment Premium multiplied by (b) a fraction, which in no
event will be greater than one, the numerator of which is equal to
the positive excess, if any, of (i) the Pass-Through Rate for such
Class of Regular Certificates or the Class A-4FL Regular
Interest then receiving principal over (ii) the related Discount
Rate, and the denominator of which is equal to the positive excess,
if any, of (i) the Mortgage Rate for such Mortgage Loan or REO
Loan, as the case may be, over (ii) the related Discount Rate,
multiplied by (c) a fraction, the numerator of which is
equal to the amount of principal distributable on such Class of
Regular Certificates or the Class A-4FL Regular Interest on
such Distribution Date pursuant to Section 4.01(a) with respect to
Loan Group 1, and the denominator of which is equal to the Loan
Group 1 Principal Distribution Amount for such Distribution
Date.
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(b) With
respect to any Distribution Date and any Class of Regular
Certificates (other than the Class IO Certificates, the Class
FS Certificates and any Excluded Class) or the Class A-4FL
Regular Interest entitled to distributions of principal
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-9-
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with respect to Loan Group 2
pursuant to Section 4.01(a) on such Distribution Date;
provided that a Yield Maintenance Charge and/or Prepayment
Premium was actually collected on a Mortgage Loan or an REO Loan in
such Loan Group during the related Collection Period, the product
of (a) such Yield Maintenance Charge and/or Prepayment Premium
multiplied by (b) a fraction, which in no event will be
greater than one, the numerator of which is equal to the positive
excess, if any, of (i) the Pass-Through Rate for such Class of
Regular Certificates or the Class A-4FL Regular Interest then
receiving principal over (ii) the related Discount Rate, and
the denominator of which is equal to the positive excess, if any,
of (i) the Mortgage Rate for such Mortgage Loan or REO Loan,
as the case may be, over (ii) the related Discount Rate,
multiplied by (c) a fraction, the numerator of which is
equal to the amount of principal distributable on such Class of
Regular Certificates or the Class A-4FL Regular Interest on
such Distribution Date pursuant to Section 4.01(a) with
respect to Loan Group 2, and the denominator of which is equal to
the Loan Group 2 Principal Distribution Amount for such
Distribution Date.
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(c) For
purposes of the foregoing, to the extent that payments of principal
on any Class of Regular Certificates (other than the Class IO
Certificates and any Excluded Class) or the Class A-4FL
Regular Interest could be made from principal amounts allocable to
Loan Group 1 or principal amounts allocable to Loan Group 2, the
Trustee shall assume that those payments of principal on that Class
of Regular Certificates or the Class A-4FL Regular Interest
are made from amounts allocable to each Loan Group, on a pro
rata basis in accordance with the respective amounts allocable
to each Loan Group that were available for payment on that Class of
Certificates or Regular Interest.
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“
Advance ”: Any P&I Advance or Servicing
Advance.
“
Adverse Grantor Trust Event ”: As defined in
Section 10.02(g).
“
Adverse REMIC Event ”: As defined in
Section 10.01(h).
“
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.
“
Agreement ”: This Pooling and Servicing
Agreement and all amendments hereof and supplements
hereto.
“
Anticipated Repayment Date ”: For each ARD Loan,
the date specified in the related Mortgage Note after which the
Mortgage Rate for such ARD Loan will increase as specified in the
related Mortgage Note (other than as a result of a default
thereunder).
“
Appraisal ”: With respect to any Mortgage Loan,
an appraisal of the related Mortgaged Property from an Independent
Appraiser selected by the Special Servicer or the Master Servicer
prepared in accordance with 12 CFR §225.62 and conducted in
accordance with the standards of the American Appraisal Institute
by an Independent Appraiser which
-10-
Independent Appraiser shall be
advised to take into account the factors specified in Section
3.09(a), any available environmental, engineering or other third
party reports, and other factors that a prudent real estate
appraiser would consider.
“
Appraisal Reduction Amount ”: The excess, if
any, of (a) the sum of (without duplication), as calculated by
the Master Servicer as of the first Determination Date immediately
succeeding the Master Servicer obtaining knowledge of the
occurrence of the Required Appraisal Date if no new Required
Appraisal is required or the date on which a Required Appraisal (or
letter update or internal valuation, if applicable) is obtained and
each Determination Date thereafter so long as the related Mortgage
Loan remains a Required Appraisal Mortgage Loan (i) the Stated
Principal Balance of the subject Required Appraisal Mortgage Loan
(including, with respect to the Four Seasons Resort and Club -
Dallas, TX Loan, the Four Seasons Resort and Club - Dallas, TX
Non-Pooled Component) and any related Companion Loans related
thereto, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer or the Trustee (or, with respect to
the J.P. Morgan 2006-LDP8 Serviced Mortgage Loan, by the J.P.
Morgan 2006-LDP8 Master Servicer No. 1 or with respect to the
2006-C27 Serviced Mortgage Loans, by the 2006-C27 Master Servicer),
all unpaid interest on the Required Appraisal Mortgage Loan
(including, for such purposes, any related Pari Passu Companion
Loan serviced hereunder) through the most recent Due Date prior to
such Determination Date at a per annum rate equal to the
related Net Mortgage Rate (exclusive of any portion thereof that
constitutes Additional Interest), (iii) all accrued but unpaid
Servicing Fees and all accrued but unpaid Additional Trust Fund
Expenses in respect of such Required Appraisal Mortgage Loan,
including, for such purposes, any related Pari Passu Companion Loan
(plus, with respect to the J.P. Morgan 2006-LDP8 Serviced Mortgage
Loan or the 2006-C27 Serviced Mortgage Loans, any similar fees and
expenses (to the extent the Master Servicer has actual knowledge of
such fees and expenses) payable under the J.P. Morgan 2006-LDP8
Pooling and Servicing Agreement or the 2006-C27 Pooling and
Servicing Agreement, respectively), (iv) all related
unreimbursed Advances and any Advances related to such Required
Appraisal Mortgage Loan (including, for such purposes, any related
Pari Passu Companion Loan) that were reimbursed out of general
collections from the pool of Mortgage Loans (plus accrued interest
thereon) made by or on behalf of the Master Servicer or the Trustee
with respect to such Required Appraisal Mortgage Loan and
(v) all currently due and unpaid real estate taxes and
unfunded improvement reserves and assessments, insurance premiums,
and, if applicable, ground rents in respect of the related
Mortgaged Property over (b) an amount equal to the sum of
(i) the Required Appraisal Value (or in the case of a
Non-Serviced Mortgaged Loan, its pro rata portion of the
Required Appraisal Value based on its outstanding principal balance
and the outstanding principal balance of the related Whole Loan)
and (ii) all escrows, reserves and letters of credit held for
the purposes of reserves ( provided such letters of credit
may be drawn upon for reserve purposes under the related Mortgage
Loan documents) held with respect to such Required Appraisal
Mortgage Loan. If the Special Servicer fails to obtain a
Required Appraisal (or letter update or internal valuation, if
applicable) within the time limit described in
Section 3.09(a), the Appraisal Reduction Amount for the
related Required Appraisal Mortgage Loan will equal 25% of the
outstanding principal balance of such Required Appraisal Mortgage
Loan (including, with respect to the Four Seasons Resort and Club -
Dallas, TX Loan, the Four Seasons Resort and Club - Dallas, TX
Non-Pooled Component) (including, further, for such purposes, any
related Pari Passu Companion Loan) to be adjusted upon receipt of a
Required Appraisal or letter update or internal valuation, if
applicable. In the event a Mortgagor fails to make a Balloon
Payment on
-11-
a scheduled maturity date and no
Appraisal has been received within 120 days of such failure,
the Appraisal Reduction Amount for the related Mortgage Loan
(including, for such purposes, any related Pari Passu Companion
Loan) will equal 25% of the outstanding principal balance of such
Mortgage Loan (including, for such purposes, any related Pari Passu
Companion Loan), to be adjusted upon receipt of the new
Appraisal. Any Appraisal Reduction Amount for a Co-Lender
Loan shall be allocated as provided in
Section 4.04(d).
“
Appraised Value ”: With respect to each
Mortgaged Property, the appraised value thereof based upon the most
recent Appraisal (or letter update or internal valuation, if
applicable) that is contained in the related Servicing
File.
“
ARD Loan ”: Any Mortgage Loan that provides that
if the unamortized principal balance thereof is not repaid on its
Anticipated Repayment Date, such Mortgage Loan will accrue
Additional Interest at the rate specified in the related Mortgage
Note and the Mortgagor is required to apply excess monthly cash
flow generated by the related Mortgaged Property to the repayment
of the outstanding principal balance on such Mortgage
Loan.
“
Artesia ”: Artesia Mortgage Capital Corporation,
or its successor in interest.
“
Artesia Mortgage Loan Purchase Agreement ”: That
certain mortgage loan purchase agreement, dated as of October 1,
2006, between the Depositor and Artesia, and relating to the
transfer of the Artesia Mortgage Loans to the Depositor.
“
Artesia Mortgage Loans ”: Each of the Mortgage
Loans transferred and assigned to the Depositor pursuant to the
Artesia Mortgage Loan Purchase Agreement.
“
Asset Status Report ”: As defined in
Section 3.21(d).
“
Assignment of Leases ”: With respect to any
Mortgaged Property, any assignment of leases, rents and profits or
similar document or instrument executed by the Mortgagor in
connection with the origination of the related Mortgage
Loan.
“
Assumed Scheduled Payment ”: With respect to any
Balloon Mortgage Loan for its Stated Maturity Date (
provided that such Mortgage Loan has not been paid in full
and no other Liquidation Event has occurred in respect thereof on
or before such Stated Maturity Date) and for any Due Date
thereafter as of which such Mortgage Loan remains outstanding and
part of the Trust Fund, the Periodic Payment of principal and/or
interest deemed to be due in respect thereof on such Due Date that
would have been due in respect of such Mortgage Loan on such Due
Date if the related Mortgagor had been required to continue to pay
principal in accordance with the amortization schedule, if any, and
to accrue interest at the Mortgage Rate, in effect on the Closing
Date and without regard to the occurrence of its Stated Maturity
Date. With respect to any REO Loan, for any Due Date therefor
as of which the related REO Property remains part of the Trust
Fund, the Periodic Payment of principal and/or interest deemed to
be due in respect thereof on such Due Date that would have been due
in respect of the predecessor Mortgage Loan (or, if applicable,
Companion Loans) on such Due Date had it remained outstanding (or,
if the predecessor Mortgage Loan was a Balloon Mortgage Loan and
such Due Date coincides with or follows what had been its Stated
Maturity Date, the Assumed Scheduled Payment that would
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have been deemed due in respect
of the predecessor Mortgage Loan on such Due Date had it remained
outstanding).
“
Authenticating Agent ”: Any authenticating agent
appointed pursuant to Section 8.12 (or, in the absence of any
such appointment, the Trustee).
“
Available Distribution Amount ”: With respect to
any Distribution Date, an amount equal to, with respect to each
Mortgage Loan, (a) the sum (including, with respect to the
J.P. Morgan 2006-LDP8 Serviced Mortgage Loan and the 2006-C27
Serviced Mortgage Loans any amounts remitted by or advanced
pursuant to the J.P. Morgan 2006-LDP8 Pooling and Servicing
Agreement the 2006-C27 Pooling and Servicing Agreement,
respectively) of, without duplication, (i) the aggregate of
the amounts on deposit in the Certificate Account and the
Distribution Account (without regard to any payments made to or
received from the Swap Counterparty) as of the close of business on
the last day of the related Collection Period and the amounts
collected by or on behalf of the Master Servicer as of the close of
business on the last day of such Collection Period and required to
be deposited in the Certificate Account; provided ,
however , that with respect to the Four Seasons Resort and
Club - Dallas, TX Loan, only such amounts as are allocated to the
Four Seasons Resort and Club - Dallas, TX Pooled Component in
accordance with the terms of this Agreement, (ii) the
aggregate amount of any P&I Advances made by the Master
Servicer or the Trustee for distribution on the Certificates (other
than the Class A-4FL Certificates) and the Class A-4FL
Regular Interest on such Distribution Date pursuant to
Section 4.03; provided , however , that with
respect to the Four Seasons Resort and Club - Dallas, TX Loan, only
such amounts as are allocated to the Four Seasons Resort and Club -
Dallas, TX Pooled Component in accordance with the terms of this
Agreement, (iii) the aggregate amount transferred from the REO
Account (if established) to the Certificate Account as of the last
day of the related Collection Period, on or prior to the P&I
Advance Date in such month, pursuant to Section 3.16(c);
provided , however , that with respect to the Four
Seasons Resort and Club - Dallas, TX Loan, only such amounts as are
allocated to the Four Seasons Resort and Club - Dallas, TX Pooled
Component in accordance with the terms of this Agreement,
(iv) the aggregate amount deposited by the Master Servicer in
the Certificate Account for such Distribution Date pursuant to
Section 3.19 in connection with Prepayment Interest
Shortfalls; provided , however , that with respect to
the Four Seasons Resort and Club - Dallas, TX Loan, only such
amounts as are allocated to the Four Seasons Resort and Club -
Dallas, TX Pooled Component in accordance with the terms of this
Agreement, and (v) for each Distribution Date occurring in
March, and for the final Distribution Date if the final
Distribution Date occurs in February or, if such year is not a leap
year, in January, the aggregate of the Interest Reserve Amounts in
respect of each Interest Reserve Loan (or, in the case of the Four
Seasons Resort and Club - Dallas, TX Loan, the Four Seasons Resort
and Club - Dallas, TX Pooled Component) deposited into the
Distribution Account pursuant to Section 3.05(d); and (vi) for
the initial Distribution Date only, the Interest Shortfall Amount
deposited into the Distribution Account pursuant to Section 3.05,
net of (b) the portion of the amount described in subclauses
(a)(i) and (a)(iii) of this definition that represents
one or more of the following: (i) collected Periodic
Payments that are due on a Due Date following the end of the
related Collection Period, (ii) any amounts payable or
reimbursable to any Person from the (A) Certificate Account
pursuant to clauses (ii)-(xvi), (xx), (xxi) and (xxiii) of
Section 3.05(a) or (B) the Distribution Account pursuant
to clauses (ii)-(vii) of Section 3.05(b),
(iii) Prepayment Premiums and Yield Maintenance Charges,
(iv) Additional Interest, (v) with respect to
the
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Distribution Date occurring in
February of each year and in January of each year that is not a
leap year (unless, in either case, the related Distribution Date is
the final Distribution Date), the Interest Reserve Amounts with
respect to the Interest Reserve Loans to be withdrawn from the
Certificate Account and remitted to the Trustee for deposit in the
Interest Reserve Account in respect of such Distribution Date and
held for future distribution pursuant to Section 3.04(c),
(vi) for the initial Distribution Date only and each Mortgage
Loan originated in September 2006 that has its first Due Date in
November 2006, any interest amounts relating to the period prior to
the Cut-Off Date of such Mortgage Loan payable to the related
Mortgage Loan Seller; and (vii) any amounts deposited in the
Certificate Account or the Distribution Account in error. The
Available Distribution Amount will not include any amounts required
to be distributed pursuant to the terms of any Intercreditor
Agreement or this Agreement to a Companion Holder or any amounts
allocated in respect of the Four Seasons Resort & Club –
Dallas, TX Non-Pooled Component.
“
Balloon Mortgage Loan ”: Any Mortgage Loan that
by its original terms or by virtue of any modification entered into
as of the Closing Date provides for an amortization schedule
extending beyond its Stated Maturity Date.
“
Balloon Payment ”: With respect to any Balloon
Mortgage Loan as of any date of determination, the Scheduled
Payment payable on the Stated Maturity Date of such Mortgage
Loan.
“
Bankruptcy Code ”: The federal Bankruptcy Code,
as amended from time to time (Title 11 of the United States
Code).
“
Bid Allocation ”: With respect to the Master
Servicer and each Sub-Servicer and the proceeds of any bid pursuant
to Section 7.01(c), the amount of such proceeds (net of any
expenses incurred in connection with such bid and the transfer of
servicing), multiplied by a fraction equal to (a) the
Servicer Fee Amount for the Master Servicer or such Sub-Servicer,
as the case may be, as of such date of determination, over
(b) the aggregate of the Servicer Fee Amounts for the Master
Servicer and all of the Sub-Servicers as of such date of
determination.
“
Bold Concepts Building Intercreditor Agreement
”: The Intercreditor Agreement Among Note Holders,
dated as of September __, 2006, by and between Wachovia Bank,
National Association, as A Note Holder, and CBA-Mezzanine Capital
Finance, LLC, as B Note Holder, relating to the Bold Concepts
Building Whole Loan.
“
Bold Concepts Building Loan ”: That certain
Mortgage Loan which is included in the Trust Fund (identified as
loan number 126 on the Mortgage Loan Schedule).
“
Bold Concepts Building Subordinate Companion Loan
”: That certain mortgage loan evidenced by a note,
which is not an asset of the Trust Fund, secured by the Mortgaged
Property securing the Bold Concepts Building Loan and subordinate
in right of entitlement with the Gateway Center Loan.
“
Bold Concepts Building Whole Loan ”: The Bold
Concepts Building Loan, together with the Bold Concepts Building
Subordinate Companion Loan.
-14-
“
Book-Entry Certificate ”: Any Certificate
registered in the name of the Depository or its nominee.
“
Breach ”: As defined in
Section 2.03(a).
“
Business Day ”: Any day other than a Saturday, a
Sunday or a day on which banking institutions in New York, New
York, or the cities in which the Corporate Trust Office of the
Trustee (which as of the Closing Date is Columbia, Maryland), the
offices of the Co-Trustee (which as of the Closing Date is Boston,
Massachusetts), the offices of the Master Servicer (which as of the
Closing Date is Charlotte, North Carolina) or the offices of the
Special Servicer (which as of the Closing Date is Needham,
Massachusetts) are located, are authorized or obligated by law or
executive order to remain closed.
“
CERCLA ”: The Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as
amended.
“
Certificate ”: Any one of the Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2006-C28, as executed by the Certificate
Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
“
Certificate Account ”: The segregated account or
accounts created and maintained by the Master Servicer pursuant to
Section 3.04(a) on behalf of the Trustee in trust for
Certificateholders, which shall be entitled “Wachovia Bank,
National Association, as Master Servicer for Wells Fargo Bank,
N.A., as Trustee, on behalf of and in trust for the registered
holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2006-C28.”
Subject to the related Intercreditor Agreement and taking into
account that (i) each Subordinate Companion Loan is
subordinate to its related Co-Lender Loan to the extent set forth
in the related Intercreditor Agreement, and (ii) each Pari
Passu Companion Loan is pari passu with the related Mortgage
Loan, each subaccount described in the next to last paragraph of
Section 3.04(a) that is part of the Certificate Account
shall be for the benefit of the related Companion Holder, to the
extent funds on deposit in such subaccount are attributed to the
related Companion Loan.
“
Certificate Deferred Interest ”: The amount by
which interest distributable to any Class of Sequential Pay
Certificates (other than the Class A-4FL Certificates), to the
Class FS Certificates or to the Class A-4FL Regular Interest,
as applicable, is reduced by the amount of Mortgage Deferred
Interest allocable to such Class of Certificates or Regular
Interest on any Distribution Date.
“
Certificate Factor ”: With respect to any Class
of Regular Certificates and the Class A-4FL Certificates as of
any date of determination, a fraction, expressed as a decimal
carried to eight places, the numerator of which is the then current
Class Principal Balance, or Class IO Notional Amount, as
applicable, of such Class of Regular Certificates or the
Class A-4FL Certificates and the denominator of which is the
Original Class Principal Balance or Original Class IO Notional
Amount of such Class of Regular Certificates or the
Class A-4FL Certificates, as applicable.
-15-
“
Certificate Notional Amount ”: With respect to
any Class IO Certificate, as of any date of determination, the
then notional amount of such Certificate equal to the product of
(a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then applicable Class IO
Notional Amount.
“
Certificate Owner ”: With respect to a
Book-Entry Certificate, the Person who is the beneficial owner of
such Certificate as reflected on the books of the Depository or on
the books of a Depository Participant or on the books of an
indirect participating brokerage firm for which a Depository
Participant acts as agent.
“
Certificate Principal Balance ”: With respect to
any Sequential Pay Certificate or any Class FS Certificate, as of
any date of determination, the then outstanding principal amount of
such Certificate equal to the product of (a) the Percentage
Interest evidenced by such Certificate multiplied by
(b) the then Class Principal Balance of the Class of
Certificates to which such Certificate belongs. The
Certificate Principal Balance of the Class A-4FL Certificates
shall be equal at all times to the Certificate Principal Balance of
the Class A-4FL Regular Interest.
“
Certificate Register” and “Certificate Registrar
”: The register maintained and the registrar appointed
pursuant to Section 5.02.
“
Certificateholder ”: The Person in whose name a
Certificate is registered in the Certificate Register, except that
(i) only a Permitted Transferee shall be the Holder of a
Residual Certificate for any purpose hereof and, (ii) solely
for the purposes of giving any consent, approval or waiver pursuant
to this Agreement that relates to any of the Depositor, any
Mortgage Loan Seller, the Master Servicer, the Special Servicer or
the Trustee in its respective capacity as such (except with respect
to amendments or waivers referred to in Sections 7.04 and 11.01
hereof and any consent, approval or waiver required or permitted to
be made by the Majority Subordinate Certificateholder or the
Controlling Class Representative and any election, removal or
replacement of the Special Servicer or the Controlling Class
Representative pursuant to Section 6.09), any Certificate
registered in the name of the Depositor, any Mortgage Loan Seller,
the Master Servicer, the Special Servicer or the Trustee, as the
case may be, or any Certificate registered in the name of any of
their respective Affiliates, shall be deemed not to be outstanding,
and the Voting Rights to which it is entitled shall not be taken
into account in determining whether the requisite percentage of
Voting Rights necessary to effect any such consent, approval or
waiver that relates to it has been obtained. The Certificate
Registrar shall be entitled to request and rely upon a certificate
of the Depositor, the Master Servicer or the Special Servicer in
determining whether a Certificate is registered in the name of an
Affiliate of such Person. All references herein to
“Holders” or “Certificateholders” shall
reflect the rights of Certificate Owners as they may indirectly
exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided
, however , that the parties hereto shall be required to
recognize as a “Holder” or
“Certificateholder” only the Person in whose name a
Certificate is registered in the Certificate Register.
“
Class ”: Collectively, all of the Certificates
bearing the same alphabetical and, if applicable, numerical class
designation and each designated REMIC I Regular
Interest.
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“
Class A Certificates ”: The Class A-1,
Class A-2, Class A-PB, Class A-3, Class A-4,
Class A-4FL and Class A-1A Certificates.
“
Class A-1 Certificate ”: Any one of the
Certificates with a “Class A-1” designation on the
face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class A-1A Certificate ”: Any one of the
Certificates with a “Class A-1A” designation on
the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class A-2 Certificate ”: Any one of the
Certificates with a “Class A-2” designation on the
face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class A-3 Certificate ”: Any one of the
Certificates with a “Class A-3” designation on the
face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a regular interest in REMIC II for
purposes of the REMIC Provisions.
“
Class A-4 Certificate ”: Any one of the
Certificates with a “Class A-4” designation on the
face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a regular interest in REMIC II for
purposes of the REMIC Provisions.
“
Class A-4FL Available Funds ”: With respect
to any Distribution Date, will equal the sum of (i) the total
amount of all principal and/or interest distributions on or in
respect of the Class A-4FL Regular Interest with respect to
such Distribution Date and (ii) the amounts, if any, received from
the Swap Counterparty pursuant to the Swap Contract for such
Distribution Date, less (iii) with respect to interest
distributions, all regularly scheduled fixed interest amounts
(prior to the termination of the Swap Contract or prior to the
occurrence and during the continuance of a Swap Default, exclusive
of any Yield Maintenance Charges or Prepayment Premiums allocated
in respect of the Class A-4FL Regular Interest) required to be
paid to the Swap Counterparty pursuant to the Swap Contract for
such Distribution Date.
“
Class A-4FL Certificate ”: Any one of the
Certificates with a “Class A-4FL” designation on
the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing an undivided beneficial interest in
the Class A-4FL Grantor Trust.
“
Class A-4FL Distribution Conversion ”: With
respect to any Distribution Date (i) upon the occurrence and during
the continuation of a Swap Default while the Trustee (or the Paying
Agent on its behalf) is pursuing remedies under the Swap Contract
pursuant to Section 3.31 or (ii) immediately upon and following the
termination of the Swap Contract until a replacement swap contract
is entered into, if any, the conversion of distributions to the
Class A-4FL Certificates from distributions based, in part, on
floating interest payments from the Swap Counterparty under the
Swap Contract to distributions based solely on fixed interest
distributions in respect of the Class A-4FL Regular Interest,
as specified in Section 4.01(m).
“
Class A-4FL Grantor Trust ”: That certain
“grantor trust” (within the meaning of the Grantor
Trust Provisions), the assets of which are the Class A-4FL
Grantor Trust Assets.
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“
Class A-4FL Grantor Trust Assets ”: The
segregated pool of assets consisting of the Class A-4FL
Regular Interest, the Swap Contract, the Floating Rate Account and
the proceeds thereof, the beneficial ownership of which is
represented by the Class A-4FL Certificates.
“
Class A-4FL Interest Distribution Amount ”:
With respect to any Distribution Date, an amount equal to the sum
of (i) amounts in respect of interest received in respect of the
Class A-4FL Regular Interest for such Distribution Date and
(ii) the Floating Swap Payment, less (iii) the Fixed Swap Payment
for such Distribution Date.
“
Class A-4FL Principal Distribution Amount
”: With respect to any Distribution Date, an amount
equal to the amount of principal allocated pursuant to Section 4.01
in respect of the Class A-4FL Regular Interest on such
Distribution Date.
“
Class A-4FL Regular Interest ”: The
uncertificated interest in REMIC II, designated as
“Class A-4FL”, constituting a “regular
interest” in REMIC II for purposes of the REMIC Provisions
and having the characteristics attributable thereto in this
Agreement.
“
Class A-J Certificate ”: Any one of the
Certificates with a “Class A-J” designation on the
face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class A-M Certificate ”: Any one of the
Certificates with a “Class A-M” designation on the
face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class A-PB Certificate ”: Any one of the
Certificates with a “Class A-PB designation on the face
thereof, substantially in the form of Exhibit A-3 attached
hereto, and evidencing a “regular interest” in REMIC II
for purposes of the REMIC Provisions.
“
Class A-PB Planned Principal Amount ”: The
planned principal amount set forth on Exhibit R hereto
relating to principal payments for the Class A-PB
Certificates.
“
Class B Certificate ”: Any one of the
Certificates with a “Class B” designation on the
face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class C Certificate ”: Any one of the
Certificates with a “Class C” designation on the
face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class D Certificate ”: Any one of the
Certificates with a “Class D” designation on the
face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class E Certificate ”: Any one of the
Certificates with a “Class E” designation on the
face thereof, substantially in the form of Exhibit A-14
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
-18-
“
Class F Certificate ”: Any one of the
Certificates with a “Class F” designation on the
face thereof, substantially in the form of Exhibit A-15
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class FS Available Distribution Amount ”: With
respect to any Distribution Date, an amount equal to (a) the sum
of, without duplication, (i) the aggregate of the amounts collected
in respect of the Four Seasons Resort and Club - Dallas, TX Loan on
deposit in the Certificate Account and the Distribution Account as
of the close of business at the end of the related Collection
Period and the amounts collected in respect of the Four Seasons
Resort and Club - Dallas, TX Loan by or on behalf of the Master
Servicer as of the close of business on the last day of such
Collection Period and required to be deposited in the Certificate
Account; provided, in each case, only to the extent of amounts
allocated to the Four Seasons Resort and Club - Dallas, TX
Non-Pooled Component in accordance with this Agreement, (ii) the
aggregate amount of any P&I Advances of interest in respect of
the Four Seasons Resort and Club - Dallas, TX Loan made by the
Master Servicer or the Trustee, to the extent allocated to the Four
Seasons Resort and Club - Dallas, TX Non-Pooled Component in
accordance with this Agreement, for distribution on the Class FS
Certificates on such Distribution Date pursuant to Section 4.03 and
(iii) the aggregate amount deposited by the Master Servicer in the
Certificate Account in respect of the Four Seasons Resort and Club
- Dallas, TX Loan; provided, only to the extent of amounts
allocable to the Four Seasons Resort and Club - Dallas, TX
Non-Pooled Component in accordance with this Agreement for such
Distribution Date pursuant to Section 3.19 in connection with
Prepayment Interest Shortfalls, net of (b) the portion of the
amount described in subclauses (a)(i) and (a)(iii) of this
definition that represents one or more of the following: (i)
collected Periodic Payments that are due on a Due Date following
the end of the related Collection Period, (ii) any amounts payable
or reimbursable to any Person from the (A) Certificate Account
pursuant to clauses (ii) through (xv), (xix), (xx) and (xxii) of
Section 3.05(a) or (B) the Distribution Account pursuant to clauses
(ii) through (vi) of Section 3.05(b), (iii) Yield Maintenance
Charges allocable to the Four Seasons Resort and Club - Dallas, TX
Non-Pooled Component and (iv) any amounts deposited in the
Certificate Account or Distribution Account in error.
“ Class FS Certificate ”: Any one of the
Certificates with a “Class FS” designation on the face
thereof, substantially in the form of Exhibit A-29 attached
hereto, and evidencing a “regular interest” in REMIC II
for purposes of the REMIC Provisions entitled to payment on the
Four Seasons Resort and Club - Dallas, TX Non-Pooled
Component.
“
Class FS-NP Uncertificated Interest ”: An
uncertificated regular interest in the Four Seasons Resort and Club
- Dallas, TX Loan REMIC which is held as an asset of REMIC I and
having the original Four Seasons Resort and Club - Dallas, TX Loan
REMIC Principal Amount for the Four Seasons Resort and Club -
Dallas, TX Non-Pooled Component, as adjusted pursuant to this
Agreement and per annum rate of interest equal to the Four
Seasons Resort and Club - Dallas, TX Loan REMIC Remittance
Rate.
“
Class FS-P Uncertificated Interest ”: An
uncertificated regular interest in the Four Seasons Resort and Club
- Dallas, TX Loan REMIC that (i) corresponds to the Four Seasons
Resort and Club - Dallas, TX Pooled Component, (ii) is held as an
asset of REMIC I and (iii) has the original Four Seasons Resort and
Club - Dallas, TX Loan REMIC Principal Balance
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for the Four Seasons Resort and
Club - Dallas, TX Pooled Component, as adjusted pursuant to this
Agreement, and corresponding Component Loan Remittance Rate set
forth in the Preliminary Statement hereto.
“
Class FS Principal Distribution Amount ”: With
respect to any Distribution Date, the aggregate of the following,
without duplication, to the extent paid by the Mortgagor under the
Four Seasons Resort and Club - Dallas, TX Loan and allocable to the
Four Seasons Resort and Club - Dallas, TX Non-Pooled Component in
accordance with this Agreement:
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(a) the
aggregate of the principal portions of all Scheduled Payments
(other than Balloon Payments) and any Assumed Scheduled Payments
due or deemed due and allocable to the Four Seasons Resort and Club
- Dallas, TX Non-Pooled Component in accordance with this Agreement
for its Due Date occurring during the related Collection Period, to
the extent not previously received with respect to a Distribution
Date prior to such Collection Period;
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(b) the
aggregate of all Principal Prepayments received on the Four Seasons
Resort and Club - Dallas, TX Loan and allocable to the Four Seasons
Resort and Club - Dallas, TX Non-Pooled Component during the
Collection Period;
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(c) if
the Stated Maturity Date of the Four Seasons Resort and Club -
Dallas, TX Loan occurred during or prior to the related Collection
Period, any payment of principal (other than a Principal
Prepayment) made by or on behalf of the Mortgagor during the
related Collection Period (including any Balloon Payment), net of
any portion of such payment that represents a recovery of the
principal portion of any Scheduled Payment (other than a Balloon
Payment) due, or the principal portion of any Assumed Scheduled
Payment deemed due, in respect of the Four Seasons Resort and Club
- Dallas, TX Loan to the extent allocable to the Four Seasons
Resort and Club - Dallas, TX Non-Pooled Component in accordance
with this Agreement on a Due Date during or prior to the related
Collection Period and not previously recovered;
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(d) the
aggregate of the principal portion of all Liquidation Proceeds,
Insurance Proceeds and, to the extent not otherwise included in
clause (a), (b) or (c) above, payments that were received on the
Four Seasons Resort and Club - Dallas, TX Loan, to the extent
allocable to the Four Seasons Resort and Club - Dallas, TX
Non-Pooled Component in accordance with this Agreement, during the
related Collection Period and that were identified and applied by
the Master Servicer and/or Special Servicer as recoveries of
principal of the Four Seasons Resort and Club - Dallas, TX Loan, to
the extent allocable to the Four Seasons Resort and Club - Dallas,
TX Non-Pooled Component in accordance with this Agreement, in each
case net of any portion of such amounts that represents a recovery
of the principal portion of any Scheduled Payment (other than a
Balloon Payment) due, or of the principal portion of any Assumed
Scheduled Payment deemed due, in respect of the Four Seasons Resort
and Club - Dallas, TX Loan, to the extent allocable to the Four
Seasons Resort and Club - Dallas, TX Non-Pooled Component in
accordance with this Agreement, on a Due Date during or prior to
the related Collection Period and not previously
recovered;
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(e) if
such Distribution Date is subsequent to the initial Distribution
Date, the excess, if any, of the Class FS Principal Distribution
Amount for the immediately preceding Distribution Date, over the
aggregate distributions of principal made on the Class FS
Certificates on such immediately preceding Distribution Date
pursuant to Section 4.01;
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(f) any
amounts that were used to reimburse Nonrecoverable Advances
(including interest on such Nonrecoverable Advances) from principal
collections on the Four Seasons Resort and Club - Dallas, TX Loan
pursuant to Section 3.05(a) hereof which are subsequently recovered
on the Four Seasons Resort and Club - Dallas, TX Loan, to the
extent allocable to the Four Seasons Resort and Club - Dallas, TX
Non-Pooled Component, with respect to the Distribution Date related
to the period in which such recovery occurs; less
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(g) any
amounts that were used to reimburse Workout-Delayed Reimbursement
Amounts (including interest on such Workout-Delayed Reimbursement
Amounts) from principal collections on the Four Seasons Resort and
Club - Dallas, TX Loan, to the extent allocable to the Four Seasons
Resort and Club - Dallas, TX Non-Pooled Component, pursuant to
Section 3.05(a) hereof which are subsequently recovered on the Four
Seasons Resort and Club - Dallas, TX Loan with respect to the
Distribution Date related to the period in which such recovery
occurs; less
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(h) the
amount of any reimbursements of (i) Nonrecoverable Advances
(including interest on such Nonrecoverable Advances) that are paid
or reimbursed from principal collections on the Four Seasons Resort
and Club - Dallas, TX Loan pursuant to Section 3.05(a) hereof with
respect to such Distribution Date, to the extent allocable to the
Four Seasons Resort and Club - Dallas, TX Non-Pooled Component, and
(ii) Workout-Delayed Reimbursement Amounts (including interest on
such Workout-Delayed Reimbursement Amounts) that are paid or
reimbursed from principal collections on the Mortgage Loans
pursuant to Section 3.05(a) hereof with respect to such
Distribution Date, to the extent allocable to the Four Seasons
Resort and Club - Dallas, TX Non-Pooled Component, in each case
where such principal collections would have otherwise been included
in the Class FS Principal Distribution Amount for such Distribution
Date.
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“
Class G Certificate ”: Any one of the
Certificates with a “Class G” designation on the
face thereof, substantially in the form of Exhibit A-16
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class H Certificate ”: Any one of the
Certificates with a “Class H” designation on the
face thereof, substantially in the form of Exhibit A-17
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class IO Certificate ”: Any one of the
Certificates with a “Class IO” designation on the face
thereof, substantially in the form of Exhibit A-8 attached
hereto, and evidencing the Components, each of which is a
“regular interest” in REMIC II for purposes of the
REMIC Provisions.
-21-
“
Class IO Notional Amount ”: With respect to the
Class IO Certificates and any date of determination, the sum of the
then Component Notional Amounts of all the Components.
“
Class IO Strip Rate ”: With respect to any Class
of Components for any Distribution Date, a rate per annum
equal to (i) the Weighted Average Net Mortgage Rate for such
Distribution Date, minus (ii) the Pass-Through Rate for the
Corresponding Certificates.
“
Class J Certificate ”: Any one of the
Certificates with a “Class J” designation on the
face thereof, substantially in the form of Exhibit A-18
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class K Certificate ”: Any one of the
Certificates with a “Class K” designation on the
face thereof, substantially in the form of Exhibit A-19
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class L Certificate ”: Any one of the
Certificates with a “Class L” designation on the
face thereof, substantially in the form of Exhibit A-20
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class FS Uncertificated Interest ”: An
uncertificated regular interest in REMIC I which is held as an
asset of REMIC II and having the Original REMIC I Principal Balance
and per annum rate of interest set forth in the Preliminary
Statement hereto.
“ Class M Certificate ”: Any one of
the Certificates with a “Class M” designation on
the face thereof, substantially in the form of Exhibit A-21
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class N Certificate ”: Any one of the
Certificates with a “Class N” designation on the
face thereof, substantially in the form of Exhibit A-22
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class O Certificate ”: Any one of the
Certificates with a “Class O” designation on the
face thereof, substantially in the form of Exhibit A-23
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class P Certificate ”: Any one of the
Certificates with a “Class P” designation on the
face thereof, substantially in the form of Exhibit A-24
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class Q Certificate ”: Any one of the
Certificates with a “Class Q” designation on the
face thereof, substantially in the form of Exhibit A-25
attached hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“
Class R-I Certificate ”: Any one of the
Certificates with a “Class R-I” designation on the
face thereof, substantially in the form of Exhibit A-26
attached hereto, and evidencing the sole class of “residual
interests” in REMIC I for purposes of the REMIC
Provisions and the sole class of “residual interests”
in the Four Seasons Resort and Club - Dallas, TX
