Exhibit 4(a)
==============================================================================
WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor
and
[WACHOVIA BANK, NATIONAL ASSOCIATION]
Master Servicer
and
[__________]
Special Servicer
and
[__________]
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of [__________]
------------------------------
$[__________]
Commercial Mortgage Pass-Through Certificates
Series [__________]
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01
Conveyance of Mortgage Loans.................................
Section 2.02
Acceptance of the Trust Fund by Trustee......................
Section 2.03 Mortgage
Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of
Representations and Warranties..............................
Section 2.04
Representations and Warranties of Depositor..................
Section 2.05
Conveyance of Mortgage Loans; Acceptance of REMIC I and
Additional Interest Grantor Trust by Trustee................
Section 2.06 Issuance
of the REMIC I Regular Interests; Execution,
Authentication and Delivery of Class R-I Certificates.......
Section 2.07
Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee.........................................
Section 2.08
Execution, Authentication and Delivery of REMIC II
Certificates................................................
Section 2.09
[Reserved]...................................................
Section 2.10
Execution, Authentication and Delivery of Class Z
Certificates................................................
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01
Administration of the Mortgage Loans.........................
Section 3.02
Collection of Mortgage Loan Payments.........................
Section 3.03
Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts........................
Section 3.04
Certificate Account, Interest Reserve Account,
Gain-on-Sale Reserve Account, Additional Interest
Account, Distribution Account and Companion Distribution
Account.....................................................
Section 3.05 Permitted
Withdrawals from the Certificate Account,
Distribution Account, Interest Reserve Account,
Additional Interest Account, Gain-on-Sale Reserve
Account and Companion Distribution Account..................
Section 3.06
Investment of Funds in the Servicing Accounts, Reserve
Accounts, Certificate Account, Interest Reserve Account,
Distribution Account, Companion Distribution Account,
Additional Interest Account, Gain-on-Sale Reserve
Account and REO Account.....................................
Section 3.07
Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.......................................
Section 3.08
Enforcement of Alienation Clauses............................
Section 3.09
Realization Upon Defaulted Mortgage Loans; Required
Appraisals..................................................
Section 3.10 Trustee
and Custodian to Cooperate; Release of Mortgage
Files.......................................................
Section 3.11 Servicing
Compensation.......................................
Section 3.12 Property
Inspections; Collection of Financial Statements;
Delivery of Certain Reports.................................
Section 3.13 Annual
Reports on Assessment of Compliance with Servicing
Criteria and Annual Reports on Assessment of Compliance
with Servicing Criteria.....................................
Section 3.14
Attestation by Independent Public Accountants................
Section 3.15 Access to
Certain Information................................
Section 3.16 Title to
REO Property; REO Account...........................
Section 3.17
Management of REO Property...................................
Section 3.18
Resolution of Defaulted Mortgage Loans and REO Properties....
Section 3.19
Additional Obligations of Master Servicer and Special
Servicer....................................................
Section 3.20
Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer
of Servicing Between Master Servicer and Special
Servicer; Record Keeping....................................
Section 3.22
Sub-Servicing Agreements.....................................
Section 3.23
Representations and Warranties of Master Servicer and
Special Servicer............................................
Section 3.24
Sub-Servicing Agreement Representation and Warranty..........
Section 3.25
Designation of Controlling Class Representative..............
Section 3.26 Companion
Paying Agent.......................................
Section 3.27 Companion
Register...........................................
Section 3.28
[Reserved]...................................................
Section 3.29 Future
Debt Secured by Interests in Related Borrowers........
Section 3.30 Certain
Matters Relating to the Future Securitization of
the [__________] Companion Loan.............................
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01
Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Loan
Periodic
Update File.................................................
Section 4.03 P&I
Advances.................................................
<PAGE>
Section 4.04
Allocation of Realized Losses and Additional Trust Fund
Expenses; Allocation of Certificate Deferred Interest;
Allocation of Appraisal Reduction Amounts...................
Section 4.05
Calculations.................................................
Section 4.06 Use of
Agents................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The
Certificates.............................................
Section 5.02
Registration of Transfer and Exchange of Certificates........
Section 5.03
Book-Entry Certificates......................................
Section 5.04
Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons
Deemed Owners........................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
Section 6.01 Liability
of Depositor, Master Servicer and Special
Servicer....................................................
Section 6.02 Merger,
Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.........................
Section 6.03
Limitation on Liability of Depositor, Master Servicer and
Special Servicer............................................
Section 6.04
Resignation of Master Servicer and the Special Servicer......
Section 6.05 Rights of
Depositor and Trustee in Respect of Master
Servicer
and the Special Servicer...........................
Section 6.06
Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee......................................
Section 6.07
Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer.............................................
Section 6.08
Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer............................................
Section 6.09
Designation of Special Servicer by the Controlling
Class and Controlling Holders...............................
Section 6.10 Master
Servicer or Special Servicer as Owner of a
Certificate.................................................
Section 6.11 The
Controlling Class Representative.........................
ARTICLE VII
DEFAULT
Section 7.01 Events of
Default............................................
<PAGE>
Section 7.02 Trustee
to Act; Appointment of Successor.....................
Section 7.03
Notification to Certificateholders and Companion Holders.....
Section 7.04 Waiver of
Events of Default..................................
Section 7.05
Additional Remedies of Trustee Upon Event of Default.........
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of
Trustee............................................
Section 8.02 Certain
Matters Affecting Trustee............................
Section 8.03 Trustee
Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................
Section 8.04 Trustee
May Own Certificates.................................
Section 8.05 Fees and
Expenses of Trustee; Indemnification of Trustee.....
Section 8.06
Eligibility Requirements for Trustee.........................
Section 8.07
Resignation and Removal of Trustee...........................
Section 8.08 Successor
Trustee............................................
Section 8.09 Merger or
Consolidation of Trustee...........................
Section 8.10
Appointment of Co-Trustee or Separate Trustee................
Section 8.11
Appointment of Custodians....................................
Section 8.12
Appointment of Authenticating Agents.........................
Section 8.13 Access to
Certain Information................................
Section 8.14
Appointment of REMIC Administrators..........................
Section 8.15
Representations and Warranties of Trustee....................
Section 8.16
Appointment of the Paying Agent..............................
Section 8.17 Reports
to the Securities and Exchange Commission;
Available Information.......................................
Section 8.18
Maintenance of Mortgage File.................................
ARTICLE IX
TERMINATION
Section 9.01
Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02
Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC
Administration.........................................
Section 10.02 Administration of the Additional Interest Grantor
Trust......
<PAGE>
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment....................................................
Section 11.02 Recordation of Agreement;
Counterparts.......................
Section 11.03 Limitation on Rights of
Certificateholders...................
Section 11.04 Governing
Law................................................
Section 11.05
Notices......................................................
Section 11.06 Severability of
Provisions...................................
Section 11.07 Grant of a Security
Interest.................................
Section 11.08 Streit
Act...................................................
Section 11.09 Successors and Assigns;
Beneficiaries........................
Section 11.10 Article and Section
Headings.................................
Section 11.11 Notices to Rating
Agencies...................................
Section 11.12 Complete
Agreement...........................................
<PAGE>
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-3 Certificate
A-3
Section 1.01 Definition of
"Class A-3 Certificate"
Form of Class A-PB Certificate
A-4
Section 1.01 Definition of
"Class A-PB Certificate"
Form of Class A-4 Certificate
A-5
Section 1.01 Definition of
"Class A-4 Certificate"
Form of Class A-5 Certificate
A-6
Section 1.01 Definition of
"Class A-5 Certificate"
Form of Class A-1A Certificate
A-7
Section 1.01 Definition of
"Class A-1A Certificate"
Form of Class X-C Certificate
A-8
Section 1.01 Definition of
"Class X-C Certificate"
Form of Class X-P Certificate
A-9
Section 1.01 Definition of
"Class X-P Certificate"
Form of Class A-M Certificate
A-10
Section 1.01 Definition of
"Class A-M Certificate"
Form of Class A-J Certificate
A-11
Section 1.01 Definition of
"Class A-J Certificate"
Form of Class B Certificate
A-12
Section 1.01 Definition of
"Class B Certificate"
Form of Class C Certificate
A-13
Section 1.01 Definition of
"Class C Certificate"
Form of Class D Certificate
A-14
Section 1.01 Definition of
"Class D Certificate"
Form of Class E Certificate
A-15
Section 1.01 Definition of
"Class E Certificate"
Form of Class F Certificate
A-16
Section 1.01 Definition of
"Class F Certificate"
Form of Class G Certificate
A-17
Section 1.01 Definition of
"Class G Certificate"
<PAGE>
Exhibit Description
Exhibit No.
Section Reference
-------------------
----------
-------------------
Form of Class H Certificate
A-18
Section 1.01 Definition of
"Class H Certificate"
Form of Class J Certificate
A-19
Section 1.01 Definition of
"Class J Certificate"
Form of Class K Certificate
A-20
Section 1.01 Definition of
"Class K Certificate"
Form of Class L Certificate
A-21
Section 1.01 Definition of
"Class L Certificate"
Form of Class M Certificate
A-22
Section 1.01 Definition of
"Class M Certificate"
Form of Class N Certificate
A-23
Section 1.01 Definition of
"Class N Certificate"
Form of Class O Certificate
A-24
Section 1.01 Definition of
"Class O Certificate"
Form of Class P Certificate
A-25
Section 1.01 Definition of
"Class P Certificate"
Form of Class Q Certificate
A-26
Section 1.01 Definition of
"Class Q Certificate"
Form of Class S Certificate
A-27
Section 1.01 Definition of
"Class S Certificate"
Form of Class R-I
Certificate
A-28
Section 1.01 Definition of
"Class R-I
Certificate"
Form of Class R-II Certificate
A-29
Section 1.01 Definition of
"Class R-II
Certificate"
Form of Class Z Certificate
A-30
Section 1.01 Definition of
"Class Z
Certificate"
Mortgage Loan Schedule
B Section
1.01 Definition of
"Mortgage Loan Schedule"
Schedule of Exceptions to
C-1
Section 2.02(a)
Mortgage File
Delivery
Form of Custodial
C-2
Section 2.02(b)
Certification
Form of Master Servicer
D-1
Section 1.01 Definition of
Request for Release
"Request for Release";
Section 2.03(b);
Section 3.10(a); and
Section 3.10(b)
Form of Special Servicer
D-2
Section 1.01 Definition of
Request for Release
"Request for Release";
Section 3.10(b)
<PAGE>
Exhibit Description
Exhibit No.
Section Reference
-------------------
----------
-------------------
Calculation of NOI/Debt
E Section
1.01 Definition of "Net
Service Coverage
Ratios
Operating Income"
Form of Transferor Certificate
F-1
Section 5.02(b)
Form of Transferee
F-2
Section 5.02(b)
Certificate for
QIBs
Form of Transferee
F-3
Section 5.02(b)
Certificate for
Non-QIBs
Form of Transferee Certificate
G Section
5.02(c)
Form of Transfer Affidavit
H-1
Section 5.02(d)(i)(B)
and Agreement Pursuant
to
Section
5.02(d)(i)(B)
Form of Transferor
H-2
Section 5.02(d)(i)(D)
Certificate Pursuant
to
Section
5.02(d)(i)(D)
Form of Notice and
I-1
Section 6.09
Acknowledgment
Form of Acknowledgment of
I-2
Section 6.09
Proposed Special
Servicer
[RESERVED]
J
Form of Certificateholder
K-1
Section 1.01 Definition of
Confirmation
Certificate
"Privileged
Person";
Request by Beneficial
Holder
Section 3.15(a)
Form of Prospective Purchaser
K-2
Section 3.15(a)
Certificate
Initial Companion Holders
L Section
3.27
Form of Purchase Option
M Section
3.18(e)
Notice
Form of Defeasance Certificate
N Section
3.20(h)
Form of Depositor
O Section
8.17(b)
Certification
Form of Trustee Certification
P Section
8.17(c)
Form of Master Servicer
Q-1
Section 8.17(c)
Certification
Form of Special Servicer
Q-2
Section 8.17(c)
Certification
Class A-PB Planned Principal
R Section
1.01 Definition of
Balance Table
"Class A-PB Planned Principal
Amount"
<PAGE>
Exhibit Description
Exhibit No.
Section Reference
-------------------
----------
-------------------
Relevant Servicing Criteria
S Section
1.01 Definition of
"Relevant Servicing Criteria"
Class X-P Reference Rate
T Section
1.01 Definition of
Schedule
"Class X-P Reference Rate"
Additional Form 10-D
U Section
8.17(i)
Disclosure
Additional Disclosure
V Section
1.01 Definition of
Notification
"Additional Disclosure
Notification"; Section 8.17(i)
Additional Form 10-K
W Section
8.17(k)
Disclosure
Form 8-K Disclosure
X Section
8.17(j)
Information
Sub-Servicer List
Y Section
8.17(f)
<PAGE>
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement (the "Agreement") is dated
and
effective as of [__________], among WACHOVIA COMMERCIAL MORTGAGE
SECURITIES,
INC., as Depositor, [WACHOVIA BANK, NATIONAL ASSOCIATION], as
Master Servicer,
[__________], as Special Servicer and [__________], as 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.
REMIC I
-------
As provided herein, the Trustee will elect to treat the
segregated
pool of assets consisting of all of the Mortgage Loans (exclusive
of that
portion of the interest payments thereon that constitutes
Additional 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.
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 the
Regular Certificates will be designated as a separate "regular
interest" in
REMIC II for purposes of the REMIC Provisions under federal income
tax law.
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 X Certificates (the "Corresponding
Components") and the
Original Class Principal Balance for each Class of Sequential Pay
Certificates
(the "Corresponding Certificates").
<PAGE>
<TABLE>
<CAPTION>
Original
Corresponding
Original
Corresponding
Class
REMIC I REMIC I
REMIC I
Components of
Corresponding
Principal
Regular Principal
Pass-Through
Class X
Certificates
Balance
Interests (1)
Balance Rate
Certificates (1)
------------
---------
-------------
--------- ----------- ----------------
<S>
<C>
<C>
<C>
<C>
<C>
Class A-1
$[_________] LA-1-1
$[_________] (2)
X-A-1-1
LA-1-2
$[_________]
X-A-1-2
LA-1-3
$[_________]
X-A-1-3
LA-1-4
$[_________]
X-A-1-4
Class A-2
$[_________] LA-2-1
$[_________] (2)
X-A-2-1
LA-2-2
$[_________]
X-A-2-2
LA-2-3
$[_________]
X-A-2-3
Class A-3
$[_________] LA-3
$[_________] (2)
X-A-3
Class A-PB
$[_________]
LA-PB-1
$[_________] (2)
X-A-PB-1
LA-PB-2
$[_________]
X-A-PB-2
LA-PB-3
$[_________]
X-A-PB-3
LA-PB-4
$[_________]
X-A-PB-4
Class A-4
$[_________] LA-4-1
$[_________] (2)
X-A-4-1
LA-4-2
$[_________]
X-A-4-2
LA-4-3
$[_________]
X-A-4-3
LA-4-4
$[_________]
X-A-4-4
LA-4-5
$[_________]
X-A-4-5
LA-4-6
$[_________]
X-A-4-6
LA-4-7
$[_________]
X-A-4-7
Class A-5
$[_________] LA-5-1
$[_________] (2)
X-A-5-1
LA-5-2
$[_________]
X-A-5-2
LA-5-3
$[_________]
X-A-5-3
Class A-1A
$[_________] LA-1A-1
$[_________] (2)
X-A-1A-1
LA-1A-2
$[_________]
X-A-1A-2
LA-1A-3
$[_________]
X-A-1A-3
LA-1A-4
$[_________]
X-A-1A-4
LA-1A-5
$[_________]
X-A-1A-5
LA-1A-6
$[_________]
X-A-1A-6
LA-1A-7
$[_________]
X-A-1A-7
LA-1A-8
$[_________]
X-A-1A-8
LA-1A-9
$[_________]
X-A-1A-9
LA-1A-10
$[_________]
X-A-1A-10
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Original
Corresponding
Original
Corresponding
Class
REMIC I REMIC I
REMIC I
Components of
Corresponding
Principal
Regular Principal
Pass-Through
Class X
Certificates
Balance
Interests (1)
Balance Rate
Certificates (1)
------------
---------
-------------
--------- ----------- ----------------
<S>
<C>
<C>
<C>
<C>
<C>
LA-1A-11
$[_________]
X-A-1A-11
LA-1A-12
$[_________]
X-A-1A-12
LA-1A-13
$[_________]
X-A-1A-13
LA-1A-14
$[_________]
X-A-1A-14
LA-1A-15 $[_________]
X-A-1A-15
Class A-M
$[_________] LA-M
$[_________] (2)
X-A-M
Class A-J
$[_________] LA-J
$[_________] (2)
X-A-J
Class B
$[_________] LB
$[_________] (2)
X-B
Class C
$[_________] LC
$[_________] (2)
X-C
Class D
$[_________] LD
$[_________] (2)
X-D
Class E
$[_________] LE-1
$[_________] (2)
X-E-1
LE-2
$[_________]
X-E-2
Class F
$[_________] LF-1
$[_________] (2)
X-F-1
LF-2
$[_________]
X-F-2
LF-3
$[_________]
X-F-3
Class G
$[_________] LG-1
$[_________] (2)
X-G-1
LG-2
$[_________]
X-G-2
Class H
$[_________]
LH-1
$[_________] (2)
X-H-1
LH-2
$[_________]
X-H-2
LH-3
$[_________]
X-H-3
Class J
$[_________] LJ-1
$[_________] (2)
X-J-1
LJ-2
$[_________]
X-J-2
Class K
$[_________] LK-1
$[_________] (2)
X-K-1
LK-2
$[_________]
X-K-2
LK-3
$[_________]
X-K-3
Class L
$[_________] LL
$[_________] (2)
X-L
Class M
$[_________] LM
$[_________] (2)
X-M
Class N
$[_________] LN
$[_________] (2)
X-N
Class O
$[_________] LO
$[_________] (2)
X-O
Class P
$[_________] LP
$[_________] (2)
X-P
Class Q
$[_________] LQ
$[_________] (2)
X-Q
Class S
$[_________] LS
$[_________] (2)
X-S
</TABLE>
<PAGE>
------------
(1) The REMIC I
Regular Interest or Interests and the Component or Components
of the
Class X Certificates that correspond to any particular Class of
Sequential
Pay Certificates also correspond to each other and,
accordingly, constitute the Corresponding REMIC I Regular Interests
and
the
Corresponding Components (if any), respectively, with respect to
each
other.
(2) The Weighted
Average Net Mortgage Rate.
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. As provided herein, the Trustee shall take
all actions
necessary to ensure that the portions of the Trust Fund consisting
of the
Additional Interest Grantor Trust maintain their status as a
"grantor trust"
under federal income tax law and not be treated as part of either
REMIC I or
REMIC II.
The [_________] ([___]) mortgage loans referred to in this
Agreement
as the [__________] Companion Loan and the [__________] 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
[__________] Loan (loan number [___]) and the [__________] Loan
(loan number
[___]) (each, a "Co-Lender Loan" and collectively, the "Co-Lender
Loans") that
are part of the Trust Fund.
The [__________] Loan and the [__________] Pari Passu Companion
Loan
are pari passu with each other. As and to the extent provided
herein, the
Companion Loan will be serviced and administered in accordance with
this
Agreement. The [__________] Loan and the [__________] Companion
Loan will be
serviced and administered in accordance with the Pooling and
Servicing Agreement
(the "[__________] Pooling and Servicing Agreement"), dated as of
[__________],
by and among Wachovia Commercial Mortgage Securities, Inc., as
depositor (the
"[__________] Depositor"), [__________], as master servicer (the
"[__________]
Master Servicer"), [__________], as special servicer (the
"[__________] Special
Servicer"), and [__________], as trustee (the "[__________]
Trustee"), pursuant
to which the Wachovia Bank Commercial Mortgage Trust Commercial
Mortgage
Pass-Through Certificates, Series [__________] were issued. Amounts
attributable
to the Companion Loans will not be assets of the Trust Fund and
will be owned by
the Companion Holders.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the
Trustee agree as
follows:
<PAGE>
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.
"30/360 Basis": The accrual of interest calculated on the basis of
a
360-day year consisting of twelve 30-day months.
"Accrued Certificate Interest": With respect to any Class of
Regular
Certificates (other than the Class X Certificates) for any
Distribution Date,
one month's interest at the Pass-Through Rate applicable to such
Class of
Certificates 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 X-C
and Class
X-P Certificates for any Distribution Date, the sum of the Accrued
Component
Interest for the related Interest Accrual Period for all of their
respective
Components for such Distribution Date. 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 Component Interest": With respect to each Component of
the
Class X-C and Class X-P Certificates for any Distribution Date, one
month's
interest at the Class X-C Strip Rate or Class X-P 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.
"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 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 to
be
included with any Additional Form 10-D Disclosure, Additional Form
10-K
Disclosure or Form 8-K Disclosure Information which is attached
hereto as
Exhibit V.
<PAGE>
"Additional Form 10-D Disclosure": As defined in Section
8.17(i).
"Additional Form 10-K Disclosure": As defined in Section
8.17(k).
"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 "[__________], as Trustee, in trust for the
registered
holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage
Pass-Through Certificates, Series [__________], Additional Interest
Account."
The Additional Interest Account shall not be an asset of any REMIC
created
hereunder.
"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 after its
Anticipated Repayment Date, the incremental increase in the per
annum rate at
which such Mortgage Loan 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, 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 (viii), (ix), (xii),
(xiii), (xiv) and
(xx) 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": (a) With respect to any Distribution
Date
and any Class of Regular Certificates (other than the Class X
Certificates and
any Excluded Class) 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 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 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. (b) With respect to
any
Distribution Date and any Class of Regular Certificates (other than
the
Class X
Certificates and any Excluded Class) entitled to distributions
of
principal
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 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 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. (c)
For
purposes of the foregoing, to the extent that payments of principal
on
any Class
of Regular Certificates (other than the Class X Certificates
and
any
Excluded Class) 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 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.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event": As defined in Section 10.02(e).
"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).
"Applicable Requirements of Regulation AB": With respect to the
Trustee, Item 1108(b), the last sentence of Item 1108(c)(4), the
first sentence
of Item 1108(c)(7), Item 1109(a), Item 1109(b), Item 1117 and Item
1119.
"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
ss.225.62 and
conducted in accordance with the standards of the American
Appraisal Institute
by an Independent Appraiser.
"Appraisal
Reduction Amount": The excess, if any, of (a) the sum of
(without duplication), as calculated by the Special Servicer as of
the first
Determination Date immediately succeeding the Special 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, (ii) to the extent not previously advanced
by or on
behalf of the Master Servicer or the Trustee, all unpaid interest
on the
Required Appraisal Mortgage Loan (including, for such purposes, the
[__________]
Companion Loan or any related Subordinate 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, the
[__________] Companion Loan or any related Subordinate Companion
Loan serviced
hereunder, (iv) all related unreimbursed Advances and any Advances
related to
such Required Appraisal Mortgage 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
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 document) 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 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 a
scheduled maturity date and no Appraisal has been received within
[__] days of
such failure, the Appraisal Reduction Amount for the related
Mortgage Loan will
equal 25% of the outstanding principal balance of such Mortgage
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.
"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 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 of,
without duplication, (i) the aggregate of the amounts on deposit in
the
Certificate Account and the Distribution Account 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;
(ii) the aggregate amount of any P&I Advances made by the
Master Servicer or the
Trustee for distribution on the Certificates on such Distribution
Date pursuant
to Section 4.03; (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); (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; 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 deposited into the Distribution Account
pursuant to
Section 3.05(d), 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)-(xv), (xix), (xx) and (xxii) 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 Distribution Date occurring in February of each year
and in
January of each year that is not a leap year, 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 [_________] that has its first Due Date
in
[_________], 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.
"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.
<PAGE>
"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.
"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
[_________]), the offices of the Master Servicer (which as of the
Closing Date
is [_________]) or the offices of the Special Servicer (which as of
the Closing
Date is [_________]) 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
[__________], 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
"[__________], as Master Servicer for [__________], as Trustee, on
behalf of and
in trust for the registered holders of Wachovia Bank Commercial
Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
[__________]." 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 Pari Passu
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.
<PAGE>
"Certificate Deferred Interest": The amount by which interest
distributable to any Class of Sequential Pay Certificates is
reduced by the
amount of Mortgage Deferred Interest allocable to such Class of
Certificates on
any Distribution Date.
"Certificate Factor": With respect to any Class of Regular
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, Class X-C Notional Amount or Class X-P Notional
Amount, as
applicable, of such Class of Regular Certificates and the
denominator of which
is the Original Class Principal Balance or Original Notional Amount
of such
Class of Regular Certificates.
"Certificate Notional Amount": With respect to any Class X-C
Certificate or Class X-P 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
Class X-C
Notional Amount or Class X-P Notional Amount, as applicable.
"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, 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.
"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.
"Certification": As defined in Section 8.17(j).
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificates": The Class A-1, Class A-2, Class A-3,
Class
A-PB, Class A-4, Class A-5 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-3
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-5 Certificate": Any one of the Certificates with a
"Class
A-5" designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"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-11
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-10
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
<PAGE>
"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-4
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-12
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-13
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-14
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-15
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class
F"
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 G Certificate": Any one of the Certificates with a "Class
G"
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 H Certificate": Any one of the Certificates with a "Class
H"
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 J Certificate": Any one of the Certificates with a "Class
J"
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 K Certificate": Any one of the Certificates with a "Class
K"
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 L Certificate": Any one of the Certificates with a "Class
L"
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.
<PAGE>
"Class M Certificate": Any one of the Certificates with a "Class
M"
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 N Certificate": Any one of the Certificates with a "Class
N"
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 O Certificate": Any one of the Certificates with a "Class
O"
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 P Certificate": Any one of the Certificates with a "Class
P"
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 Principal Balance": The aggregate principal balance of
any
Class of Sequential Pay Certificates outstanding from time to time.
As of the
Closing Date, the Class Principal Balance of each Class of
Sequential Pay
Certificates shall equal the Original Class Principal Balance
thereof. On each
Distribution Date, the Class Principal Balance of each such Class
of
Certificates shall be reduced by the amount of any distributions of
principal
made thereon on such Distribution Date pursuant to Section 4.01 or
9.01, as
applicable, and shall be further reduced by the amount of any
Realized Losses
and Additional Trust Fund Expenses allocated thereto on such
Distribution Date
pursuant to Section 4.04(a). The Class Principal Balance of any
Class of
Sequential Pay Certificates will be increased on any Distribution
Date by the
amount of any Certificate Deferred Interest allocated to such Class
on such
Distribution Date. Distributions in respect of a reimbursement of
Realized
Losses and Additional Trust Fund Expenses previously allocated to a
Class of
Sequential Pay Certificates shall not constitute distributions of
principal and
shall not result in reduction of the related Class Principal
Balance.
"Class Q Certificate": Any one of the Certificates with a "Class
Q"
designation on the face thereof, substantially in the form of
Exhibit A-26
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-28
attached hereto, and evidencing the sole class of residual
interests in REMIC I
for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a
"Class
R-II" designation on the face thereof, substantially in the form of
Exhibit A-29
attached hereto, and evidencing the sole class of "residual
interests" in REMIC
II for purposes of the REMIC Provisions.
"Class S Certificate": Any one of the Certificates with a "Class
S"
designation on the face thereof, substantially in the form of
Exhibit A-27
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class X Certificates": The Class X-C and Class X-P
Certificates.
<PAGE>
"Class X-C Certificate": Any one of the Certificates with a
"Class
X-C" designation on the face thereof, substantially in the form of
Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class X-C Notional Amount": With respect to the Class X-C
Certificates and any date of determination, the sum of the then
Component
Notional Amounts of all of the Components.
"Class X-C Strip Rate": With respect to any Class of Components
(other than Components that are also Class X-P 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. In the case of any Class of Components that are also
Class X-P
Components, (i) for any Distribution Date occurring on or before
the related
Class X-P Component Crossover Date, (x) the Weighted Average Net
Mortgage Rate
for such Distribution Date minus (y) the sum of the Pass-Through
Rate for the
Corresponding Certificates for such Distribution Date and the Class
X-P Strip
Rate for such Component for such Distribution Date, and (ii) for
any
Distribution Date occurring after the related Class X-P Component
Crossover
Date, a rate per annum equal to (x) the Weighted Average Net
Mortgage Rate for
such Distribution Date, minus (y) the Pass-Through Rate for the
Corresponding
Certificates (provided that in no event shall any Class X-C Strip
Rate be less
than zero).
"Class X-P Certificate": Any one of the Certificates with a
"Class
X-P" designation on the face thereof, substantially in the form of
Exhibit A-9
attached hereto, and evidencing the Class X-P Components and a
"regular
interest" in REMIC II for purposes of the REMIC Provisions.
"Class X-P Component Crossover Date": With respect to each
Component
set forth in the table below, the Distribution Date occurring in
the month and
year set forth in the table below:
Component
Cross-Over Date
---------------------------------------
---------------------------------------
Component X-A-1-2 and Component
X-A-1A-2
[_________]
Component X-A-1-3 and Component
X-A-1A-3
[_________]
Component X-A-1-4, Component
X-A-2-1 and Component
X-A-1A-4
[_________]
Component X-A-2-2 and
Component
X-A-1A-5
[_________]
Component X-A-2-3, Component X-A-3,
Component X-A-PB-1,
Component
X-A-1A-6 and Component
X-K-1
[_________]
Component X-A-PB-2, Component
X-A-1A-7, Component
X-K-2
[_________]
Component X-A-PB-3, Component
X-A-1A-8, Component
X-J-1 and
Component X-K-3
[_________]
Component X-A-PB-4, Component
X-A-4-1, Component
X-A-1A-9,
Component X-H-1 and
Component
X-J-2
[_________]
Component X-A-4-2, Component
X-A-1A-10 and
Component X-H-2
[_________]
Component X-A-4-3, Component
X-A-1A-11, Component
X-G-1 and
Component X-H-3
[_________]
Component X-A-4-4, Component
X-A-1A-12, Component
X-F-1 and
Component X-G-2
[_________]
Component X-A-4-5, Component
X-A-1A-13 and
Component X-F-2
[_________]
Component X-A-4-6, Component
X-A-1A-14, Component
X-E-1 and
Component X-F-3
[_________]
Component X-A-4-7, Component
X-A-1A-15, and
Component X-E-2
[_________]
"Class X-P Components": Each of Component X-A-1-2, Component
X-A-1-3, Component X-A-1-4, Component X-A-1A-2, Component X-A-1A-3,
Component
X-A-1A-4, Component X-A-1A-5, Component X-A-1A-6, Component
X-A-1A-7, Component
X-A-1A-8, Component X-A-1A-9, Component X-A-1A-10, Component
X-A-1A-11,
Component X-A-1A-12, Component X-A-1A-13, Component X-A-1A-14,
Component
X-A-1A-15, Component X-A-2-1, Component X-A-2-2, Component X-A-2-3,
Component
X-A-3, Component X-A-4-1, Component X-A-4-2, Component X-A-4-3,
Component
X-A-4-4, Component X-A-4-5, Component X-A-4-6, Component X-A-4-7,
Component
X-A-5-1, Component X-A-5-2, Component X-A-5-3, Component X-A-PB-1,
Component
X-A-PB-2, Component X-A-PB-3, Component X-A-PB-4, Component X-A-M,
Component
X-A-J, Component X-B, Component X-C, Component X-D, Component
X-E-1, Component
X-E-2, Component X-F-1, Component X-F-2, Component X-F-3, Component
X-G-1,
Component X-G-2, Component X-H-1, Component X-H-2, Component X-H-3,
Component
X-J-1, Component X-J-2, Component X-K-1, Component X-K-2 and
Component X-K-3.
"Class X-P Notional Amount": As of any date of determination,
the
sum of the then Component Notional Amounts of the Class X-P
Components,
excluding those Class X-P Components for which the Class X-P
Component Crossover
Date has previously passed.
"Class X-P Reference Rate": For any Distribution Date, the rate
per
annum corresponding to such Distribution Date on Exhibit T.
"Class X-P Strip Rate": With respect to each of the Class X-P
Components for any Distribution Date, a rate per annum equal to (i)
for any
Distribution Date occurring on or before the related Class X-P
Component
Crossover Date, (x) the lesser of (i) the Weighted Average Net
Mortgage Rate for
such Distribution Date and (ii) the Class X-P Reference Rate for
such
Distribution Date minus [___]% per annum minus (y) the Pass-Through
Rate for the
Corresponding Certificates (provided that in no event shall any
Class X-P Strip
Rate be less than zero), and (ii) for any Distribution Date
occurring after the
related Class X-P Component Crossover Date, 0% per annum.
<PAGE>
"Class Z Certificate": Any one of the Certificates with a "Class
Z"
designation on the face thereof, substantially in the form of
Exhibit A-30
attached hereto, and evidencing an undivided beneficial interest in
the
Additional Interest that is described in Section 4.01(b).
"Closing Date": [_________].
"CMSA": The Commercial Mortgage Securities Association (formerly
the
Commercial Real Estate Secondary Market and Securitization
Association) or any
successor organization.
"CMSA Advance Recovery
Report": The report substantially
in the form of, and containing the information called for in, the
downloadable form
of the "Advance Recovery Report" available as of the
Closing Date on the CMSA Website, or such other form for the
presentation of
such information and
containing such additional information as may from time
to time be approved by the CMSA for commercial mortgage securities
transactions generally.
"CMSA Bond File": The monthly report substantially in the form
of,
and containing the information called for in, the downloadable form
of the "CMSA
Bond Level File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Collateral Summary File": The report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Collateral Summary File" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Comparative Financial Status Report": The report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Comparative Financial Status Report" available as of
the Closing
Date on the CMSA Website, or such other form for the presentation
of such
information as may from time to time be approved by the CMSA for
commercial
mortgage securities transactions generally. In connection with
preparing the
CMSA Comparative Financial Status Report, the Master Servicer shall
process (a)
interim financial statements beginning with interim financial
statements for the
fiscal quarter ending [__________] and (b) annual financial
statements beginning
with annual financial statements for the [____] fiscal year.
"CMSA Delinquent Loan Status Report": The report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Delinquent Loan Status Report" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA Financial File": The report substantially in the form of,
and
containing the information called for in, the downloadable form of
the
"Financial File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Historical Liquidation Report": The report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Historical Liquidation Report" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the
information
called for in, the downloadable form of the "Historical Loan
Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan
Level
Reserve/LOC
Report":
The report
substantially in the
form of, and containing the information called for in,
the downloadable form
of the "CMSA Loan Level Reserve/LOC Report" available
as of the Closing
Date on the
CMSA Website, or such other form for the
presentation of such
information as may
from time to time be approved by the
CMSA for commercial mortgage securities transactions generally.
"CMSA Loan Periodic Update File": The monthly report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Loan Periodic Update File" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA Loan Setup File": The report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Loan
Setup File" available as of the Closing Date on the CMSA Website,
or such other
form for the presentation of such information and containing such
additional
information as may from time to time be approved by the CMSA for
commercial
mortgage securities transactions generally.
"CMSA NOI Adjustment Worksheet": A report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions and in any event, shall
present the
computations made in accordance with the methodology described in
such form to
"normalize" the full year net operating income and debt service
coverage numbers
used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis": A report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Operating Statement Analysis Report" available as of the
Closing Date on
the CMSA Website or in such other form for the presentation of such
information
and containing such additional information as may from time to time
be approved
by the CMSA for commercial mortgage-backed securities transactions
generally. In
connection with preparing the CMSA Operating Statement Analysis,
the Master
Servicer shall process (a) interim financial statements beginning
with interim
financial statements for the fiscal quarter ending [__________] and
(b) annual
financial statements beginning with annual financial statements for
the [____]
fiscal year.
"CMSA Property File": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Property
File" available as of the Closing Date on the CMSA Website, or such
other form
for the presentation of such information and containing such
additional
information as may from time to time be approved by the CMSA for
commercial
mortgage securities transactions generally.
"CMSA Reconciliation of Funds Report": The monthly report in
the
"Reconciliation of Funds" format substantially in the form of and
containing the
information called for therein for the Mortgage Loans, or such
other form for
the presentation of such information as may be approved from time
to time by the
CMSA for commercial mortgage securities transactions generally.
"CMSA REO Status Report": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "REO
Status Report" available as of the Closing Date on the CMSA
Website, or in such
other form for the presentation of such information and containing
such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watchlist": For any Determination Date, a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Servicer Watchlist/Portfolio Review
Guidelines"
available as of the Closing Date on the CMSA Website, or in such
other final
form for the presentation of such information and containing such
additional
information as may from time to time be promulgated as approved by
the CMSA for
commercial mortgage securities transactions generally.
"CMSA Website": The website maintained by the CMSA with an
address,
as of the Closing Date, of "www.cmbs.org".
"Code": The Internal Revenue Code of 1986, as amended, and
applicable temporary or final regulations of the U.S. Department of
the Treasury
promulgated thereunder.
"Co-Lender Loans": As defined in the Preliminary Statement.
"Collection Period": With respect to any Distribution Date, the
period that begins on the twelfth day in the month immediately
preceding the
month in which such Distribution Date occurs (or, in the case of
the initial
Distribution Date, commencing on the day after the related Cut-Off
Date) and
ending on and including the eleventh day in the month in which such
Distribution
Date occurs. Notwithstanding the foregoing, in the event that the
last day of a
Collection Period is not a Business Day, any Periodic Payments or
Principal
Prepayments with respect to the Mortgage Loans relating to a Due
Date occurring
in such Collection Period (but for the application of the next
Business Day
convention) received on the Business Day immediately following such
day will be
deemed to have been received during such Collection Period and not
during any
other Collection Period. In addition, notwithstanding the
foregoing, with
respect to any Distribution Date, in the event that the Due Date,
including any
grace period, with respect to any Mortgage Loan relating to such
Distribution
Date occurs after the last day of the related Collection Period,
any payments
received with respect to the related Mortgage Loan on or before
such Due Date as
extended by any applicable grace period (including without
limitation, any
prepayments) will be deemed to have been received during such
Collection Period
and not during any other Collection Period.
"Commission": The Securities and Exchange Commission or any
successor agency.
"Companion Distribution Account": With respect to the Companion
Loans, other than the [__________] Companion Loan, the separate
account(s) or
subaccount(s) created and maintained by the Companion Paying Agent
pursuant to
Section 3.04(b) and held on behalf of the Companion Holders, which
shall be
entitled "[__________], as Companion Paying Agent for the Companion
Holders of
the Companion Loans relating to the Wachovia Bank Commercial
Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
[__________]." The
Companion Distribution Accounts shall not be assets of the Trust
Fund, but
instead each Companion Distribution Account shall be held by the
Companion
Paying Agent on behalf of the applicable Companion Holder. Any such
account
shall be an Eligible Account or a subaccount of an Eligible
Account.
Notwithstanding the foregoing, if the Master Servicer and the
Companion Paying
Agent are the same entity, the Companion Distribution Account may
be the related
subaccount or subaccounts of the Certificate Account referenced in
the second to
the last paragraph of Section 3.04(a).
"Companion Holder": With respect to any Companion Loan, the owner
of
the Mortgage Note representing such Companion Loan.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Paying Agent": The paying agent appointed pursuant
to
Section 3.26.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.27.
"Component": Each of Component X-A-1-1, Component X-A-1-2,
Component
X-A-1-3, Component X-A-1-4, Component X-A-1A-1, Component X-A-1A-2,
Component
X-A-1A-3, Component X-A-1A-4, Component X-A-1A-5, Component
X-A-1A-6, Component
X-A-1A-7, Component X-A-1A-8, Component X-A-1A-9, Component
X-A-1A-10, Component
X-A-1A-11, Component X-A-1A-12, Component X-A-1A-13, Component
X-A-1A-14,
Component X-A-1A-15, Component X-A-2-1, Component X-A-2-2,
Component X-A-2-3,
Component X-A-3, Component X-A-4-1, Component X-A-4-2, Component
X-A-4-3,
Component X-A-4-4, Component X-A-4-5, Component X-A-4-6, Component
X-A-4-7,
Component X-A-5-1, Component X-A-5-2, Component X-A-5-3, Component
X-A-PB-1,
Component X-A-PB-2, Component X-A-PB-3, Component X-A-PB-4,
Component X-A-M,
Component X-A-J, Component X-B, Component X-C, Component X-D,
Component X-E-1,
Component X-E-2, Component X-F-1, Component X-F-2, Component X-F-3,
Component
X-G-1, Component X-G-2, Component X-H-1, Component X-H-2, Component
X-H-3,
Component X-J-1, Component X-J-2, Component X-K-1, Component X-K-2,
Component
X-K-3, Component X-L, Component X-M, Component X-N, Component X-O,
Component
X-P, Component X-Q and Component X-S.
"Component X-A-1-1": One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LA-1-1 as of any
date of
determination.
"Component X-A-1-2": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1-2 as of any date of
determination.
"Component X-A-1-3": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1-3 as of any date of
determination.
"Component X-A-1-4": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1-4 as of any date of
determination.
"Component X-A-1A-1": One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LA-1A-1 as of any
date of
determination.
"Component X-A-1A-2": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-2 as of any date of
determination.
"Component X-A-1A-3": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-3 as of any date of
determination.
"Component X-A-1A-4": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-4 as of any date of
determination.
"Component X-A-1A-5": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-5 as of any date of
determination.
"Component X-A-1A-6": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-6 as of any date of
determination.
"Component X-A-1A-7": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-7 as of any date of
determination.
"Component X-A-1A-8": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-8 as of any date of
determination.
"Component X-A-1A-9": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-9 as of any date of
determination.
"Component X-A-1A-10": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-10 as of any date of
determination.
"Component X-A-1A-11": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-11 as of any date of
determination.
"Component X-A-1A-12": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-12 as of any date of
determination.
"Component X-A-1A-13": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-13 as of any date of
determination.
"Component X-A-1A-14": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-14 as of any date of
determination.
<PAGE>
"Component X-A-1A-15": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-1A-15 as of any date of
determination.
"Component X-A-2-1": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-2-1 as of any date of
determination.
"Component X-A-2-2": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-2-2 as of any date of
determination.
"Component X-A-2-3": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-2-3 as of any date of
determination.
"Component X-A-3": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-3 as of any date of determination.
"Component X-A-4-1": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-1 as of any date of
determination.
"Component X-A-4-2": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-2 as of any date of
determination.
"Component X-A-4-3": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-3 as of any date of
determination.
"Component X-A-4-4": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-4 as of any date of
determination.
"Component X-A-4-5": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-5 as of any date of
determination.
"Component X-A-4-6": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-6 as of any date of
determination.
"Component X-A-4-7": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-4-7 as of any date of
determination.
"Component X-A-5-1": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-5-1 as of any date of
determination.
"Component X-A-5-2": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-5-2 as of any date of
determination.
"Component X-A-5-3": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-5-3 as of any date of
determination.
"Component X-A-J": One of the [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-J as of any date of determination.
"Component X-A-M": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-M as of any date of determination.
"Component X-A-PB-1": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-PB-1 as of any date of
determination.
"Component
X-A-PB-2": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-PB-2 as of any date of
determination.
<PAGE>
"Component X-A-PB-3": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-PB-3 as of any date of
determination.
"Component X-A-PB-4": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LA-PB-4 as of any date of
determination.
"Component X-B": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LB as of any date of determination.
"Component X-C": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LC as of any date of determination.
"Component X-D": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LD as of any date of determination.
"Component X-E-1": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LE-1 as of any date of determination.
"Component X-E-2": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LE-2 as of any date of determination.
"Component X-F-1": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LF-1 as of any date of determination.
"Component X-F-2": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LF-2 as of any date of determination.
"Component X-F-3": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LF-3 as of any date of determination.
"Component X-G-1": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount
equal to the then current REMIC I Principal Balance of REMIC I
Regular Interest
LG-1 as of any date of determination.
"Component X-G-2": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LG-2 as of any date of determination.
"Component X-H-1": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LH-1 as of any date of determination.
"Component X-H-2": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LH-2 as of any date of determination.
"Component X-H-3": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LH-3 as of any date of determination.
"Component X-J-1": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LJ-1 as of any date of determination.
"Component X-J-2": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LJ-2 as of any date of determination.
"Component X-K-1": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LK-1 as of any date of determination.
"Component X-K-2": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LK-2 as of any date of determination.
<PAGE>
"Component X-K-3": One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance of
REMIC I Regular Interest LK-3 as of any date of determination.
"Component X-L": One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LL as of any date
of
determination.
"Component X-M": One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LM as of any date
of
determination.
"Component X-N": One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LN as of any date
of
determination.
"Component X-O": One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LO as of any date
of
determination.
"Component X-P": One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LP as of any date
of
determination.
"Component X-Q": One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LQ as of any date
of
determination.
"Component X-S": One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current REMIC
I Principal Balance of REMIC I Regular Interest LS as of any date
of
determination.
"Controlling Class": With respect to each Mortgage Loan as of
any
date of determination, the Class of Sequential Pay Certificates,
(i) which bears
the latest payment priority and (ii) the Class Principal Balance of
which is
greater than 25% of the Original Class Principal Balance thereof;
provided,
however, that if no Class of Sequential Pay Certificates satisfies
clause (ii)
above, the Controlling Class shall be the outstanding Class of
Sequential Pay
Certificates bearing the latest payment priority. With respect to
determining
the Controlling Class, the Class A-1, Class A-2, Class A-3, Class
A-PB, Class
A-4, Class A-5 and Class A-1A Certificates shall be deemed a single
Class of
Certificates.
"Controlling Class Representative": As defined in Section
3.25(a).
"Controlling Person": With respect to any Person, any other
Person
who "controls" such Person within the meaning of the Securities
Act.
<PAGE>
"Corporate Trust Office": The corporate trust office of the
Trustee
at which at any particular time its corporate trust business with
respect to
this Agreement shall be administered, which office at the date of
the execution
of this Agreement is located at (i) with respect to maintenance of
the
Certificate Registrar and the transfer and exchange of
Certificates, the office
of the Trustee located at [_________] and (ii) for all other
purposes, the
office of the Trustee located at [_________].
"Corrected Mortgage Loan": Any Mortgage Loan and, if applicable,
any
Companion Loan that had been a Specially Serviced Mortgage Loan but
has ceased
to be a Specially Serviced Mortgage Loan in accordance with the
definition of
"Specially Serviced Mortgage Loan."
"Corresponding Certificate": As defined in the Preliminary
Statement
with respect to any Corresponding Component or any Corresponding
REMIC I Regular
Interest.
"Corresponding Component": As defined in the Preliminary
Statement
with respect to any Corresponding Certificate or any Corresponding
REMIC I
Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Corresponding
Certificates or
any Corresponding Component of the Class X-C Certificates or Class
X-P
Certificates.
"Crossed Group": With respect to any Mortgage Loan, such
Mortgage
Loan and all other Mortgage Loans that are cross-collateralized
and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized
and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The Debt Service
Coverage
Ratio for all remaining related Crossed Loans for the four calendar
quarters
immediately preceding the repurchase or substitution is not less
than the Debt
Service Coverage Ratio for all such related Crossed Loans,
including the
affected Crossed Loan, for the four calendar quarters immediately
preceding the
repurchase or substitution, (ii) the Loan-to-Value Ratio for any
remaining
related Crossed Loans determined at the time of repurchase or
substitution based
upon an Appraisal obtained by the Special Servicer at the expense
of the related
Mortgage Loan Seller is not greater than the Loan-to-Value Ratio
for all such
related Crossed Loans, including the affected Crossed Loan,
determined at the
time of repurchase or substitution based upon an Appraisal obtained
by the
Special Servicer at the expense of the related Mortgage Loan Seller
and (iii)
the Mortgage Loan Seller, at its expense, shall have furnished the
Trustee with
an Opinion of Counsel that the repurchase of or substitution for a
Crossed Loan,
including, without limitation, any modification relating to such
repurchase or
substitution, shall not cause an Adverse REMIC Event.
"Custodian": A Person who is at any time appointed by the
Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage
Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an
Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been
appointed or
if such custodian has been so appointed, but the Trustee shall have
terminated
such appointment, then the Trustee shall be the Custodian.
<PAGE>
"Cut-Off Date": With respect to any Mortgage Loan or Companion
Loan,
the Due Date for such Mortgage Loan or Companion Loan in
[__________].
"Cut-Off Date Balance": With respect to any Mortgage Loan or
Companion Loan, the outstanding principal balance of such Mortgage
Loan or
Companion Loan as of the Cut-Off Date, after application of all
unscheduled
payments of principal received on or before such date and the
principal
component of all Periodic Payments due on or before such date,
whether or not
received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan,
as
of any date of determination, the ratio of (x) the annualized Net
Operating
Income (before payment of any debt service on such Mortgage Loan)
generated by
the related Mortgaged Property during the most recently ended
period of not less
than six months and not more than twelve months for which financial
statements,
if available (whether or not audited) have been received by or on
behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the
Master Servicer
or the Special Servicer (following the Closing Date), to (y) twelve
times the
amount of the Periodic Payment in effect for such Mortgage Loan as
of such date
of determination.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is
delinquent
[__] days or more in respect to a Periodic Payment (not including
the Balloon
Payment) or (ii) is delinquent in respect of its Balloon Payment
unless the
Master Servicer has, on or prior to the Due Date of such Balloon
Payment,
received written evidence from an institutional lender of such
lender's binding
commitment to refinance such Mortgage Loan within [__] days after
the Due Date
of such Balloon Payment (provided that, if such refinancing does
not occur
during such time specified in the commitment, the related Mortgage
Loan will
immediately become a Defaulted Mortgage Loan), in either case such
delinquency
to be determined without giving effect to any grace period
permitted by the
related Mortgage or Mortgage Note and without regard to any
acceleration of
payments under the related Mortgage and Mortgage Note, or (iii) as
to which the
Master Servicer or Special Servicer has, by written notice to the
related
Mortgagor, accelerated the maturity of the indebtedness evidenced
by the related
Mortgage Note.
"Defaulting Party": As defined in section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan,
the
United States government securities required or permitted to be
pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a Defeasance
Loan
on the Mortgage Loan Schedule which permits or requires the related
Mortgagor
(or permits the holder of such Mortgage Loan to require the related
Mortgagor)
to pledge Defeasance Collateral to such holder in lieu of
prepayment.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged
Property in an
amount less than the then outstanding principal balance of the
Mortgage Loan,
which valuation results from a proceeding initiated under the
Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.03(a).
"Depositor": Wachovia Commercial Mortgage Securities, Inc. or
its
successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The
nominee of
the initial Depository for purposes of registering those
Certificates that are
to be Book-Entry Certificates is Cede & Co. The Depository
shall at all times be
a "clearing corporation" as defined in Section 8-102(3) of the
Uniform
Commercial Code of the State of New York and a "clearing agency"
registered
pursuant to the provisions of Section 17A of the Securities
Exchange Act of
1934, as amended.
"Depository Participant": A broker, dealer, bank or other
financial
institution or other Person for whom from time to time the
Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date": The eleventh day of each month, or if
such
eleventh day is not a Business Day, the Business Day immediately
succeeding,
commencing in [__________].
"Determination Party": Midland Loan Services, Inc., or a second
party that would qualify as a successor Special Servicer mutually
agreeable to
the Special Servicer, the Controlling Class Representative and the
applicable
Mortgage Loan Seller, or any successor in interest thereto;
provided that (a)
each such party is on the list of approved special servicers by
Moody's and on
S&P's Select Servicer List as a U.S. Commercial Mortgage
Special Servicer or (b)
each Rating Agency has confirmed in writing that contracting with
such
Determination Party would not result in a downgrade, qualification
or withdrawal
of the then current rating assigned to any of the Certificates that
are then
currently rated by such Rating Agency.
"Directly Operate": With respect to any REO Property, the
furnishing
or rendering of services to the tenants thereof, the management of
such REO
Property, the holding of such REO Property primarily for sale or
lease or the
performance of any construction work thereon, in each case other
than through an
Independent Contractor; provided, however, that the Trustee (or the
Special
Servicer or any Sub-Servicer on behalf of the Trustee) shall not be
considered
to Directly Operate an REO Property solely because the Trustee (or
the Special
Servicer or any Sub-Servicer on behalf of the Trustee) establishes
rental terms,
chooses tenants, enters into or renews leases, deals with taxes and
insurance,
or makes decisions as to repairs or capital expenditures with
respect to such
REO Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or
REO
Loan for purposes of allocating any Yield Maintenance Charge or
Prepayment
Premium received thereon or with respect thereto among the
respective Classes of
the Sequential Pay Certificates (other than any Excluded Class
thereof), an
amount, calculated by the Master Servicer and reported to the
Trustee pursuant
to Section 4.02(b), will be equal to the discount rate stated in
the related
Mortgage Loan documents used in calculating the Yield Maintenance
Charge or
Prepayment Premium with respect to such principal prepayment. To
the extent that
a discount rate is not stated therein, the "Discount Rate" will be
equal to the
yield (when compounded monthly) on the U.S. Treasury issue with a
maturity date
closest to the maturity date for such prepaid Mortgage Loan or REO
Loan. In the
event there are two or more such U.S. Treasury issues (a) with the
same coupon,
the issue with the lowest yield shall apply, and (b) with maturity
dates equally
close to the maturity date for the prepaid Mortgage Loan or REO
Loan, the issue
with the earliest maturity date shall apply.
"Disqualified Non-United States Persons": With respect to a
Class
R-I or Class R-II Certificate, any Non-United States Person or
agent thereof
other than (i) a Non-United States Person that holds the Class R-I
or Class R-II
Certificate in connection with the conduct of a trade or business
within the
United States and has furnished the transferor and the Certificate
Registrar
with an effective IRS Form W-8ECI (or successor form) or (ii) a
Non-United
States Person that has delivered to both the transferor and the
Certificate
Registrar an opinion of a nationally recognized tax counsel to the
effect that
the transfer of the Class R-I or Class R-II Certificate to it is in
accordance
with the requirements of the Code and the regulations promulgated
thereunder and
that such transfer of the Class R-I or Class R-II Certificate will
not be
disregarded for federal income tax purposes.
"Disqualified Organization": Any of the following: (i) the
United
States or a possession thereof, any State or any political
subdivision thereof,
or any agency or instrumentality of any of the foregoing (other
than an
instrumentality which is a corporation if all of its activities are
subject to
tax and, except for FHLMC, a majority of its board of directors is
not selected
by any such governmental unit), (ii) a foreign government,
international
organization, or any agency or instrumentality of either of the
foregoing, (iii)
any organization (except certain farmers' cooperatives described in
Section 1 of
the Code) which is exempt from the tax imposed by Chapter 1 of the
Code (unless
such organization is subject to the tax imposed by Section 511 of
the Code on
unrelated business taxable income), (iv) rural electric and
telephone
cooperatives described in Section 1381 of the Code or (v) any other
Person so
designated by the Trustee or the Certificate Registrar based upon
an Opinion of
Counsel (which shall not be an expense of the Trustee) that the
holding of an
Ownership Interest in a Residual Certificate by such Person may
cause the Trust
Fund or any Person having an Ownership Interest in any Class of
Certificates,
other than such Person, to incur a liability for any federal tax
imposed under
the Code that would not otherwise be imposed but for the Transfer
of an
Ownership Interest in a Residual Certificate to such Person. The
terms "United
States," "State" and "international organization" shall have the
meanings set
forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to: (a) any
Class
of Sequential Pay Certificates for any Distribution Date, the
Accrued
Certificate Interest in respect of such Class of Certificates for
such
Distribution Date, reduced other than with respect to the Class X
Certificates
(to not less than zero) by (i) the product of (A) any Net Aggregate
Prepayment
Interest Shortfall for such Distribution Date and (B) a fraction,
expressed as a
decimal, the numerator of which is the Accrued Certificate Interest
in respect
of such Class of Certificates for such Distribution Date, and the
denominator of
which is the aggregate Accrued Certificate Interest in respect of
all the
Classes of Sequential Pay Certificates for such Distribution Date,
and (ii) with
respect to each such Class, such Class' share of any Certificate
Deferred
Interest allocated to such Class of Certificates in accordance with
Section
4.04(c); and (b) any Class of Class X Certificates for any
Distribution Date,
the Accrued Certificate Interest in respect of such Class of
Certificates for
such Distribution Date.
<PAGE>
"Distribution Account": The segregated account, accounts or
subaccounts created and maintained by the Paying Agent on behalf of
the Trustee
pursuant to Section 3.04(b) which shall be entitled "[__________],
as Trustee,
in trust for the registered holders of Wachovia Bank Commercial
Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
[__________]."
"Distribution Date": With respect to any Determination Date,
the
fourth Business Day following such Determination Date.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to
its
Stated Maturity Date or any Companion Loan on or prior to its
maturity date, the
day of the month set forth in the related Mortgage Note on which
each Periodic
Payment on such Mortgage Loan or Companion Loan is scheduled to be
first due;
(ii) any Mortgage Loan after its Stated Maturity Date or any
Companion Loan
after its maturity date, the day of the month set forth in the
related Mortgage
Note on which each Periodic Payment on such Mortgage Loan or
Companion Loan had
been scheduled to be first due and (iii) any REO Loan, the day of
the month set
forth in the related Mortgage Note on which each Periodic Payment
on the related
Mortgage Loan had been scheduled to be first due.
"EDGAR": The Commission's Electronic Data Gathering, Analysis
and
Retrieval system.
"Eligible Account": Any of (i) an account maintained with a
federal
or state chartered depository institution or trust company, and (a)
with respect
to deposits held for [__] days or more in such account, the
long-term deposit or
unsecured debt obligations of which are rated at least (A) "Aa3" by
Moody's (if
then rated by Moody's), and (B) "AA-" by S&P (or "A-"; provided
the short-term
unsecured debt obligations are rated at least "A-1" by S&P)
(or, with respect to
any such Rating Agency, such lower rating as will not result in
qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as
evidenced in writing by the applicable Rating Agency), at any time
such funds
are on deposit therein or (b) with respect to deposits held for
less than [__]
days in such account, the short-term deposits of which are rated at
least "P-1"
by Moody's (if then rated by Moody's), and "A-1" by S&P (or,
with respect to any
such Rating Agency, such lower rating as will not result in
qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates) as
evidenced in writing by the applicable Rating Agency at any time
such funds are
on deposit therein; or (ii) a segregated trust account or accounts
maintained
with a federal or state chartered depository institution or trust
company acting
in its fiduciary capacity, which, in the case of a state chartered
depository
institution or trust company, is subject to regulations regarding
fiduciary
funds on deposit therein substantially similar to 12 CFR ss.
9.10(b), the long
term deposits or unsecured debt of which, or if it is the
wholly-owned
subsidiary of an entity the long-term deposits or unsecured
obligations of
which, are rated at least "Baa3" by Moody's and which has a
combined capital and
surplus of at least $50,000,000; or (iii) any other account, the
use of which
would not, in and of itself, cause a qualification, downgrading or
withdrawal of
the then-current rating assigned to any Class of Certificates, as
confirmed in
writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as described
in,
and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily
Guide or any
successor provisions covering the same subject matter in the case
of a Specially
Serviced Mortgage Loan as to which the related Mortgaged Property
is multifamily
property or (ii) the American Society for Testing and Materials in
the case of
Specially Serviced Mortgage Loan as to which the related Mortgaged
Property is
not multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974,
as
amended, and any regulations and administrative pronouncements
thereunder.
"ERISA Restricted Certificate": Any Class L, Class M, Class N,
Class
O, Class P, Class Q or Class S Certificate; provided that any such
Certificate
(a) will cease to be considered an ERISA Restricted Certificate and
(b) will
cease to be subject to the transfer restrictions related to ERISA
Restricted
Certificates contained in Section 5.02(c) if, as of the date of a
proposed
transfer of such Certificate, either (i) it is rated in one of the
four highest
generic ratings categories by a Rating Agency or (ii) relevant
provisions of
ERISA and the Code would permit transfer of such Certificate to a
Plan without
resulting in a non-exempt prohibited transaction.
"Escrow Payment": Any payment received by the Master Servicer or
the
Special Servicer for the account of any Mortgagor for application
toward the
payment of real estate taxes, assessments, insurance premiums,
ground rents (if
applicable) and other similar items in respect of the related
Mortgaged
Property.
"Event of Default": One or more of the events described in
Section
7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Excluded Class": Any Class of Sequential Pay Certificates
other
than the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates,
Class A-PB Certificates, Class A-4 Certificates, Class A-5
Certificates, Class
A-1A Certificates, Class A-M Certificates, Class A-J Certificates,
Class B
Certificates, Class C Certificates, Class D Certificates, Class E
Certificates,
Class F Certificates, Class G Certificates, Class H Certificates,
Class J and
Class K Certificates.
"Exemptions": Department of Labor Prohibited Transaction
Exemption
("PTE") [_________] and [_________], each as amended from time to
time, or any
successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any
successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan (and, if
applicable, any
defaulted Companion Loan) or REO Property that there has been a
recovery of all
Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries that
the Special Servicer has determined, in accordance with the
Servicing Standard,
will be ultimately recoverable.
"FNMA": Federal National Mortgage Association or any successor.
"Form 8-K Disclosure Information": As defined in Section
8.17(j).
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan, the
excess of (i) Liquidation Proceeds of the Mortgage Loan or related
REO Property
net of any related Liquidation Expenses, over (ii) the Purchase
Price for such
Mortgage Loan on the date on which such Liquidation Proceeds were
received.
"Gain-on-Sale Reserve Account": A segregated custodial account
or
accounts or subaccount of the Distribution Account created and
maintained by the
Paying Agent pursuant to Section 3.04(e) on behalf of the Trustee
in trust for
the Certificateholders, which shall be entitled "[__________], as
Trustee, in
trust for the registered holders of Wachovia Bank Commercial
Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
[__________]." Any such
account shall be an Eligible Account or a subaccount of an Eligible
Account.
"Grantor Trust Provisions": Subpart E of Part I of subchapter J
of
the Code and Treasury Regulations Section 301.7701-4(c).
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged
Property or space
lease within such Mortgaged Property, the lease agreement creating
such
leasehold interest.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants,
chemicals, wastes, or substances, including, without limitation,
those so
identified pursuant to CERCLA or any other federal, state or local
environmental
related laws and regulations now existing or hereafter enacted, and
specifically
including, without limitation, asbestos and asbestos-containing
materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and
petroleum products
and urea formaldehyde.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary
of
Housing and Urban Development pursuant to Section 207 of the
National Housing
Act.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person,
any
such Person who (i) is in fact independent of the Depositor, the
Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Controlling
Class
Representative, the Trustee, any Companion Holder and any and all
Affiliates
thereof, (ii) does not have any direct financial interest in or any
material
indirect financial interest in any of the Depositor, the Mortgage
Loan Sellers,
the Master Servicer, the Special Servicer, the Controlling Class
Representative,
the Trustee, any Companion Holder or any Affiliate thereof, and
(iii) is not
connected with the Depositor, the Mortgage Loan Sellers, the Master
Servicer,
the Controlling Class Representative, the Special Servicer, the
Trustee, any
Companion Holder or any Affiliate thereof as an officer, employee,
promoter,
underwriter, trustee, partner, director or Person performing
similar functions;
provided, however, that a Person shall not fail to be Independent
of the
Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Controlling Class
Representative, the Special Servicer, the Trustee or any Affiliate
thereof
merely because such Person is the beneficial owner of 1% or less of
any class of
securities issued by the Depositor, the Mortgage Loan Sellers, the
Master
Servicer, the Special Servicer, the Controlling Class
Representative, the
Trustee or any Affiliate thereof, as the case may be.
"Independent Appraiser": An Independent professional real
estate
appraiser who is a member in good standing of the Appraisal
Institute, and, if
the State in which the subject Mortgaged Property is located
certifies or
licenses appraisers, certified or licensed in such State, and in
each such case,
who has a minimum of five years experience in the subject property
type and
market.
"Initial Purchaser": Each of [__________] and [__________] or,
in
each case, its successor in interest.
"Independent Contractor": Any Person that would be an
"independent
contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of
the Code if REMIC I were a real estate investment trust (except
that the
ownership test set forth in that section shall be considered to be
met by any
Person that owns, directly or indirectly, 35 percent or more of any
Class of
Certificates, or such other interest in any Class of Certificates
as is set
forth in an Opinion of Counsel, which shall be delivered, at no
expense to the
Master Servicer, the Special Servicer, the Trustee or the Trust
Fund, to the
Trustee and the Master Servicer, so long as REMIC I does not
receive or derive
any income from such Person and provided that the relationship
between such
Person and REMIC I is at arm's length, all within the meaning of
Treasury
Regulations Section 1.856-4(b)(5)), or any other Person upon
receipt by the
Trustee of an Opinion of Counsel, which shall be at no expense to
the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, to
the effect
that the taking of any action in respect of any REO Property by
such Person,
subject to any conditions therein specified, that is otherwise
herein
contemplated to be taken by an Independent Contractor will not
cause such REO
Property to cease to qualify as "foreclosure property" within the
meaning of
Section 860G(a)(8) of the Code, or cause any income realized in
respect of such
REO Property to fail to qualify as Rents from Real Property.
"Institutional Accredited Investor": Institutional "accredited
investors" as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under
the Securities Act or any entity in which all the equity holders
fall within any
such subsections.
<PAGE>
"Insurance Policy": With respect to any Mortgage Loan, any
hazard
insurance policy, flood insurance policy, title policy or other
insurance policy
that is maintained from time to time in respect of such Mortgage
Loan or the
related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy,
to
the extent such proceeds are not applied to the restoration of the
related
Mortgaged Property, released to the Mortgagor, or any tenants or
ground lessors,
as the case may be, pursuant to the terms of the related Mortgage
or lease, in
accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.08(c).
"Intercreditor Agreement": [___________].
"Interest Accrual Period": With respect to each Class of
Regular
Certificates or the REMIC I Regular Interests and any Distribution
Date, the
calendar month immediately preceding the calendar month in which
such
Distribution Date occurs. Notwithstanding the foregoing, each
Interest Accrual
Period is deemed to consist of [__] days for purposes of
calculating interest on
the Regular Certificates or the REMIC I Regular Interests.
"Interest Reserve Account": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) in trust
for
Certificateholders, which shall be entitled "[__________], as
Trustee, on behalf
of and in trust for the registered holders of Wachovia Bank
Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
[__________]".
"Interest Reserve Amount": With respect to each Interest
Reserve
Loan and each Distribution Date that occurs in February of each
year and in
January of each year that is not a leap year, an amount equal to
one day's
interest at the related Mortgage Rate (without regard to the second
proviso in
the definition thereof) on the related Stated Principal Balance as
of the Due
Date in the month in which such Distribution Date occurs (but prior
to the
application of any amounts owed on such Due Date), to the extent a
Periodic
Payment or P&I Advance is made in respect thereof for such Due
Date as of the
related P&I Advance Date.
"Interest Reserve Loan": Each Mortgage Loan that is an
Actual/360
Mortgage Loan.
"Interested Person": The Depositor, any Mortgage Loan Seller,
the
Master Servicer, the Special Servicer, any Independent Contractor
hired by the
Special Servicer, any Holder of a Certificate, each Companion
Holder (but only
with respect to the related Co-Lender Loan) or any Affiliate of any
such Person.
"Internet Website": The Internet Websites maintained by the
Trustee
and, if applicable, the Master Servicer initially located at
"www.[_________].com" and "www.[_________].com", respectively, or
such other
address as provided to the parties hereto from time to time.
"Investment Account": As defined in Section 3.06(a).
<PAGE>
"Issue Price": With
respect to each Class of Certificates,
the "issue price" as defined in the Code and Treasury regulations
promulgated
thereunder.
"Late Collections": With respect to any Mortgage Loan or
Companion
Loan, all amounts received thereon during any Collection Period,
other than
Penalty Interest, whether as payments, Insurance Proceeds,
Liquidation Proceeds
or otherwise, which represent late collections of the principal
and/or interest
portions of a Scheduled Payment (other than a Balloon Payment) or
an Assumed
Scheduled Payment in respect of such Mortgage Loan or Companion
Loan due or
deemed due on a Due Date in a previous Collection Period, and not
previously
recovered. With respect to any REO Loan, all amounts received in
connection with
the related property during any Collection Period, whether as
Insurance
Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late
collections of the principal and/or interest portions of a
Scheduled Payment
(other than a Balloon Payment) or an Assumed Scheduled Payment in
respect of the
predecessor Mortgage Loan or of an Assumed Scheduled Payment in
respect of such
REO Loan deemed due on a Due Date in a previous Collection Period
and not
previously recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of
the
following events: (i) such Mortgage Loan is paid in full; (ii) a
Final Recovery
Determination is made with respect to such Mortgage Loan; (iii)
such Mortgage
Loan is repurchased by a Mortgage Loan Seller pursuant to the
applicable
Mortgage Loan Purchase Agreement; or (iv) such Mortgage Loan is
purchased by the
Majority Subordinate Certificateholder, the Companion Holders, the
mezzanine
lenders or the Special Servicer pursuant to Sections 3.18(c),
3.18(d), 3.18(e)
or 3.18(m), or by the Master Servicer, the Special Servicer or the
Majority
Subordinate Certificateholder pursuant to Section 9.01. With
respect to any REO
Property (and the related REO Loan), any of the following events:
(i) a Final
Recovery Determination is made with respect to such REO Property;
(ii) such REO
Property is purchased by the Master Servicer, the Special Servicer
or the
Majority Subordinate Certificateholder pursuant to Section 9.01; or
(iii) such
REO Property is purchased by the Companion Holder as described in
Section
3.18(d).
"Liquidation Fee": With respect to each Mortgage Loan and REO
Loan,
the fee payable to the Special Servicer out of certain related
recoveries
pursuant to the third paragraph of Section 3.11(c).
"Liquidation Fee Rate": With respect to all amounts set forth in
the
third paragraph of Section 3.11(c), [___]%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the
Special
Servicer in connection with: (i) the taking of all or a part of a
Mortgaged
Property or REO Property by exercise of the power of eminent domain
or
condemnation, subject, however, to the rights of any tenants and
ground lessors,
as the case may be, and the rights of the Mortgagor under the terms
of the
related Mortgage; (ii) the liquidation of a Mortgaged Property or
other
collateral constituting security for a Defaulted Mortgage Loan,
through
trustee's sale, foreclosure sale, REO Disposition or otherwise,
exclusive of any
portion thereof required to be released to the related Mortgagor in
accordance
with applicable law and the terms and conditions of the related
Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment
obtained
against a Mortgagor; (iv) the purchase of a Defaulted Mortgage Loan
by the
Majority Subordinate Certificateholder, the related Companion
Holder, the
mezzanine lenders or the Special Servicer pursuant to Section
3.18(c), Section
3.18(d), Section 3.18(e) or Section 3.18(m); (v) the repurchase of
a Mortgage
Loan by a Mortgage Loan Seller pursuant to the applicable Mortgage
Loan Purchase
Agreement; (vi) the purchase of a Mortgage Loan or REO Property by
the Master
Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder
pursuant to Section 9.01; (vii) the purchase of an REO Property by
the Companion
Holder pursuant to Section 3.18(d); or (viii) the remittance by the
applicable
Mortgage Loan Seller of amounts specified in Section 2.03(g).
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that
are
Group 1 Mortgage Loans and any successor REO Loans with respect
thereto.
"Loan Group 1 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Available
Distribution Amount
attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loans that
are
Group 2 Mortgage Loans and any successor REO Loans with respect
thereto.
"Loan Group 2 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Available
Distribution Amount
attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the Principal
Distribution Amount
attributable to Loan Group 2.
"Loan Pair": Collectively, any Co-Lender Loan and its related
Companion Loan(s).
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of
any
date of determination, a fraction, expressed as a percentage, the
numerator of
which is the then current principal amount of such Mortgage Loan,
and the
denominator of which is the Appraised Value of the related
Mortgaged Property.
"Lockout Period": With respect to any Mortgage Note that
prohibits
the Mortgagor from prepaying such Mortgage Loan until a date
specified in such
Mortgage Note, the period from the Closing Date until such
specified date.
"Majority Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates (other than any
Holder which is
an Affiliate of the Depositor or the Mortgage Loan Seller) entitled
to greater
than 50% of the Voting Rights allocated to the Controlling Class;
provided,
however, that, if there is no single Holder of Certificates
entitled to greater
than 50% of the Voting Rights allocated to such Class, then the
Majority
Subordinate Certificateholder shall be the single Holder of
Certificates with
the largest percentage of Voting Rights allocated to such Class.
With respect to
determining the Majority Subordinate Certificateholder, the Class
A-1
Certificates, the Class A-2 Certificates, the Class A-3
Certificates, the Class
A-PB Certificates, the Class A-4 Certificates, the Class A-5
Certificates and
the Class A-1A Certificates shall be deemed to be a single Class
of
Certificates, with such Voting Rights allocated among the Holders
of
Certificates of such Classes in proportion to the respective
Certificate
Principal Balances of such Certificates as of such date of
determination.
"Master Servicer": [Wachovia Bank, National Association], its
successor in interest (including the Trustee as successor pursuant
to Section
7.02), or any successor master servicer appointed as herein
provided.
"Master Servicing Fee": With respect to each Mortgage Loan and
REO
Loan the fee payable to the Master Servicer pursuant to Section
3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan
the
percentage set forth under the column "Master Servicing Fee Rate"
on the
Mortgage Loan Schedule.
"Material Core Documents": As defined in Section 2.03.
"Memorandum": As defined in the Mortgage Loan Purchase
Agreement.
"Money Term": With respect to any Mortgage Loan, the maturity
date,
Mortgage Rate, Stated Principal Balance, amortization term or
payment frequency
thereof or any provision thereof requiring the payment of a
Prepayment Premium
or Yield Maintenance Charge in connection with a Principal
Prepayment (but not
any late fees or default interest provisions).
"Moody's": Moody's Investors Service, Inc., or its successor in
interest. If Moody's nor any successor remains in existence,
"Moody's" shall be
deemed to refer to such other nationally recognized statistical
rating agency or
other comparable Person designated by the Depositor, notice of
which designation
shall be given to the Trustee, the Master Servicer and the Special
Servicer, and
specific ratings of Moody's herein referenced shall be deemed to
refer to the
equivalent ratings of the party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed
of
trust, deed to secure debt or similar instrument that secures the
Mortgage Note
and creates a lien on the fee or leasehold interest in the related
Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan
as
to which the Mortgage Rate has been reduced through a modification
and any
Distribution Date, the amount by which (a) interest accrued at such
reduced rate
is less than (b) the amount of interest that would have accrued on
such Mortgage
Loan at the Mortgage Rate before such reduction, to the extent such
amount has
been added to the outstanding principal balance of such Mortgage
Loan.
"Mortgage File": With respect to any Mortgage Loan, collectively
the
following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and
all
intervening endorsements thereon, endorsed on its face or by
allonge
attached thereto (without recourse, representation or warranty,
express or implied) to the order of "[__________], as trustee
for
the registered holders of Wachovia Bank Commercial Mortgage
Trust,
Commercial Mortgage Pass-Through Certificates, Series
[__________]",
or in blank (or a lost note affidavit and indemnity with a copy
of
such Mortgage Note attached thereto);
(ii) an original or copy of the Mortgage, together with any
and all intervening assignments thereof, in each case (unless
not
yet returned by the applicable recording office) with evidence
of
recording indicated thereon or certified by the applicable
recording
office;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage),
together
with any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office)
with
evidence of recording indicated thereon or certified by the
applicable recording office;
(iv)
an original executed assignment, in recordable form
(except for any missing recording information), of (a) the
Mortgage,
(b) any related Assignment of Leases (if such item is a
document
separate from the Mortgage and to the extent not already
assigned
pursuant to preceding clause (a)) and (c) any other recorded
document relating to the Mortgage Loan otherwise included in
the
Mortgage File, in favor of "[__________], as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
[__________]",
or in blank;
(v) an original assignment of all unrecorded documents
relating to the Mortgage Loan (to the extent not already
assigned
pursuant to clause (iv) above), in favor of "[__________], as
trustee for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series [__________]", or in blank;
(vi) originals or copies of any modification, consolidation,
assumption and substitution agreements in those instances where
the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the Mortgage Loan has been assumed
or
consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued
or
located, an original or copy of an irrevocable, binding
commitment
(which may be a marked version of the policy that has been
executed
by an
authorized representative of the title company, a "pro forma"
title policy, or an agreement to provide the same pursuant to
binding escrow instructions executed by an authorized
representative
of the title company) to issue such title insurance policy;
<PAGE>
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Trustee of any prior UCC
Financing Statements in favor of the originator of such
Mortgage
Loan or in favor of any assignee prior to the Trustee (but only
to
the extent the Mortgage Loan Seller had possession of such UCC
Financing Statements prior to the Closing Date) and, if there is
an
effective UCC Financing Statement and continuation statement in
favor of the Mortgage Loan Seller on record with the applicable
public office for UCC Financing Statements, an original UCC
Amendment, in form suitable for filing in favor of "[__________],
as
trustee for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series [__________], as assignee", or in blank; (ix) an original
or
copy of (A) any Ground Lease, Memorandum of Ground Lease and
ground
lessor estoppel, and (B) any loan guaranty or indemnity and (C)
any
environmental insurance policy;
(x) any intercreditor agreement relating to permitted debt
(including, without limitation, mezzanine debt) of the
Mortgagor;
(xi) copies of any loan agreement, escrow agreement or
security agreement relating to such Mortgage Loan;
(xii) a copy of any letter of credit and related transfer
documents relating to such Mortgage Loan;
(xiii) copies of any management agreements and applicable
transfer or assignment documents;
(xiv) copies of any cash management agreements and applicable
transfer or assignment documents;
(xv) copies of franchise agreements and franchisor comfort
letters, if any, for hospitality properties and applicable
transfer
or assignment documents; and
(xvi) with respect to any Companion Loan, all of the above
documents with respect to such Companion Loan and the related
Intercreditor Agreement; provided that a copy of each Mortgage
Note
relating to such Companion Loan, rather than the original, shall
be
provided, and no assignments shall be provided;
provided that, whenever the term "Mortgage File" is used to refer
to
documents actually received by the Trustee or by a Custodian on its
behalf, such
term shall not be deemed to include such documents required to be
included
therein unless they are actually so received, and with respect to
any receipt or
certification by the Trustee or the Custodian for documents
described in clauses
(vi) and (ix) (solely with respect to any guaranty) of this
definition, shall be
deemed to include only such documents to the extent the Trustee or
Custodian has
actual knowledge of their existence.
<PAGE>
Notwithstanding the foregoing, with respect to the [__________]
Loan, the "Mortgage File" will consist of the original note (or
lost note
affidavit, if applicable) specified in clause (i) above, and a
photocopy of each
additional document in the Mortgage File held by the [__________]
Trustee.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned
to the Trust Fund pursuant to Section 2.01 and listed on the
Mortgage Loan
Schedule and from time to time held in the Trust Fund. As used
herein, the term
"Mortgage Loan" includes the related Mortgage Note, Mortgage, and
other security
documents contained in the related Mortgage File. Unless otherwise
indicated, as
used in this Agreement, the term "Mortgage Loan" does not include
any Companion
Loan.
"Mortgage Loan Purchase Agreement": Each of the [__________]
Mortgage Loan Purchase Agreement and the [__________] Mortgage Loan
Purchase
Agreement, individually or collectively, as the context may
require.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred
on
the Closing Date to the Trustee as part of REMIC I, attached hereto
as Exhibit B
and in a computer readable format. Such list shall set forth the
following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, county, state and zip
code) and name of the related Mortgaged Property;
(iii) the Cut-Off Date Balance;
(iv) the amount of the Periodic Payment due on the first Due
Date following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) original term to stated maturity, (B) remaining
term to stated maturity and (C) the Stated Maturity Date and, in
the
case of an ARD Loan, the Anticipated Repayment Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the original and remaining amortization term;
(ix) whether the Mortgage Loan is secured by a Ground Lease;
(x) the Master Servicing Fee Rate;
(xi) whether such Mortgage Loan is an ARD Loan and if so the
Anticipated Repayment Date and Additional Interest Rate for such
ARD
Loan;
<PAGE>
(xii) the related Mortgage Loan Seller;
(xiii) whether such
Mortgage Loan is insured by an
environmental policy;
(xiv) whether such Mortgage Loan is cross-defaulted or
cross-collateralized with any other Mortgage Loan;
(xv) whether such Mortgage Loan is a Defeasance Loan;
(xvi) whether the Mortgage Loan is secured by a letter of
credit;
(xvii) whether such Mortgage Loan is an Interest Reserve Loan;
(xviii) whether payments on such Mortgage Loan are made to a
lock-box;
(xix) the amount of any Reserve Funds escrowed in respect of
each Mortgage Loan;
(xx) the number of units or square feet related to the
Mortgaged Property;
(xxi)the number of grace days after the Due Date until
Periodic Payments incur late payment charges; and
(xxii) the applicable Loan Group to which such Mortgage Loan
belongs.
"Mortgage Loan Seller": Each of [_________] and [__________],
or
their respective successors in interest, individually or
collectively as the
context may require.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion
Loan, together
with any rider, addendum or amendment thereto, or any renewal,
substitution or
replacement of such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and
any
successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or
prior
to its Stated Maturity Date, the fixed annualized rate, not
including any
Additional Interest Rate, at which interest is scheduled (in the
absence of a
default) to accrue on such Mortgage Loan from time to time in
accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage
Loan after its
Stated Maturity Date, the annualized rate described in clause (i)
above
determined without regard to the passage of such Stated Maturity
Date, but
giving effect to any modification thereof as contemplated by
Section 3.20; and
(iii) any REO Loan, the annualized rate described in clause (i) or
(ii), as
applicable, above determined as if the predecessor Mortgage Loan
had remained
outstanding; provided, however, that if any Mortgage Loan does not
accrue
interest on the basis of a 360-day year consisting of twelve 30-day
months,
then, solely for purposes of calculating the Pass-Through Rates,
the Mortgage
Rate of such Mortgage Loan for any one-month period preceding a
related Due Date
will be the annualized rate at which interest would have to accrue
in respect of
such Mortgage Loan on the basis of a 360-day year consisting of
twelve 30-day
months in order to produce the aggregate amount of interest
actually accrued
(exclusive of Penalty Interest or Additional Interest) in respect
of such
Mortgage Loan during such one-month period at the related Mortgage
Rate;
provided, however, that, solely for the purposes of calculating the
Pass-Through
Rates, with respect to each Interest Reserve Loan, the Mortgage
Rate for the
one-month period (A) preceding the Due Dates that occur in January
and February
in any year which is not a leap year or preceding the Due Date that
occurs in
February in any year which is a leap year will be determined
exclusive of the
Interest Reserve Amounts for such months (in each case unless such
Due Date
occurs in a January or February in which the final Distribution
Date occurs),
and (B) preceding the Due Date in March, and in the event the final
Distribution
Date occurs in February or, if such year is not a leap year, in
January,
preceding the Due Date in such February or January, will be
determined inclusive
of the Interest Reserve Amounts for the immediately preceding
February and, if
applicable, January; provided, further, that, if the Mortgage Rate
of the
related Mortgage Loan has been modified in connection with a
bankruptcy or
similar proceeding involving the related Mortgagor or a
modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to
Section 3.20,
solely for purposes of calculating the Pass-Through Rate, the
Mortgage Rate for
such Mortgage Loan shall be calculated without regard to such
event.
"Mortgaged
Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including
without limitation, any Person that has acquired the related
Mortgaged Property
and assumed the obligations of the original obligor under the
Mortgage Note
and/or, in the case of an indemnity deed of trust, the entity which
granted the
lien on such Mortgaged Property.
"Net Aggregate Prepayment Interest Shortfall": With respect to
any
Distribution Date, the amount, if any, by which (a) the aggregate
of all
Prepayment Interest Shortfalls incurred in connection with the
receipt of
Principal Prepayments on the Mortgage Loans during the related
Collection
Period, exceeds (b) the aggregate amount deposited by the Master
Servicer in the
Certificate Account for such Distribution Date pursuant to Section
3.19(a) in
connection with such Prepayment Interest Shortfalls on the Mortgage
Loans. For
purposes of calculating the Prepayment Interest Shortfall with
respect to the
[__________] Loan, Prepayment Interest Shortfalls will be allocated
in
accordance with the [__________] Pooling and Servicing Agreement.
The portion of
such shortfall allocated to the [__________] Loan, net of amounts
payable by the
[__________] Master Servicer, will be included in the Net Aggregate
Prepayment
Interest Shortfall. For purposes of calculating the Prepayment
Interest
Shortfall with respect to the [__________] Loan, such Prepayment
Interest
Shortfall will be calculated with respect to each of, and allocated
pro rata
among, the promissory notes related to the [__________] Loan and
the
[__________] Companion Loan. The portion of such shortfall
allocated to the
[__________] Loan, net of amounts payable by the Master Servicer,
will be
included in the Net Aggregate Prepayment Interest Shortfall. For
purposes of
calculating the Prepayment Interest Shortfall with respect to the
Co-Lender
Loans (other than the [__________] Loan and the [__________] Loan),
Prepayment
Interest Shortfalls will be allocated first to the promissory note
evidencing
the related Subordinate Companion Loan, if any, and second to the
promissory
note evidencing the related Co-Lender Loan. The portion of such
shortfall
allocated to the Co-Lender Loans, net of amounts payable by the
Master Servicer,
will be included in the Net Aggregate Prepayment Interest
Shortfall.
<PAGE>
"Net Investment Earnings": With respect to (i) the Certificate
Account, any Servicing Account, any Special Reserve Account, any
Reserve Account
or the REO Account (if any) for any Collection Period and (ii) the
Distribution
Account, the Interest Reserve Account, the Additional Interest
Account and the
Companion Distribution Account (if any) for the related
Distribution Date, the
amount, if any, by which the aggregate of all interest and other
income realized
during such Collection Period with respect to the accounts
described in clause
(i) above and as of such related Distribution Date with respect to
the accounts
described in clause (ii) above on funds held in such accounts,
exceeds the
aggregate of all losses, if any, incurred during such Collection
Period with
respect to the accounts described in clause (i) above and as of
such related
Distribution Date with respect to the accounts described in clause
(ii) above in
connection with the investment of such funds in accordance with
Section 3.06.
"Net Investment Loss": With respect to (i) the Certificate
Account,
any Servicing Account, any Special Reserve Account, any Reserve
Account or the
REO Account (if any) for any Collection Period and (ii) the
Distribution
Account, the Interest Reserve Account, the Additional Interest
Account and the
Companion Distribution Account (if any) for the related
Distribution Date, the
amount by which the aggregate of all losses, if any, incurred
during such
Collection Period with respect to the accounts described in clause
(i) above and
as of such related Distribution Date with respect to the accounts
described in
clause (ii) above in connection with the investment of funds held
in such
accounts in accordance with Section 3.06, exceeds the aggregate of
all interest
and other income realized during such Collection Period with
respect to the
accounts described in clause (i) above and as of such related
Distribution Date
with respect to the accounts described in clause (ii) above on such
funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any
REO
Loan, as of any date of determination, a rate per annum equal to
the related
Mortgage Rate minus the sum of the Trustee Fee Rate and the
applicable Master
Servicing Fee Rate.
"Net Operating Income" or "NOI": As defined in and determined
in
accordance with the provisions of Exhibit E attached hereto.
"New Lease": Any lease of REO Property entered into at the
direction
of the Special Servicer on behalf of REMIC I, including any lease
renewed,
modified or extended on behalf of such REMIC if such REMIC has the
right to
renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance; provided that Workout-Delayed
Reimbursement
Amounts shall constitute a Nonrecoverable Advance only when the
Person making
such determination in accordance with the procedures specified in
the definition
of Nonrecoverable P&I Advance or Nonrecoverable Servicing
Advance, as
applicable, and taking into account factors such as all other
outstanding
Advances, either (a) has determined in accordance with the
Servicing Standard or
the standards applicable to the Trustee as set forth in the
definitions of
"Nonrecoverable P&I Advance" and "Nonrecoverable Servicing
Advance" that such
Workout-Delayed Reimbursement Amounts would not ultimately be
recoverable from
Late Collections, Insurance Proceeds or Liquidation Proceeds, or
any other
recovery on or in respect of the related Mortgage Loan or REO Loan
or (b) has
determined in accordance with the Servicing Standard or such other
applicable
standard that such Workout-Delayed Reimbursement Amounts, along
with any other
Workout-Delayed Reimbursement Amounts and Nonrecoverable Advances,
would not
ultimately be recoverable from the portion of Late Collections,
Insurance
Proceeds or Liquidation Proceeds in respect of the pool of the
Mortgage Loans or
REO Loans allocable to principal, or any other recovery on or in
respect of the
pool of Mortgage Loans or REO Loans allocable to principal.
"Nonrecoverable P&I Advance": Any P&I Advance previously
made or
proposed to be made in respect of any Mortgage Loan, the
[__________] Companion
Loan or any REO Loan by the Master Servicer or the Trustee, as the
case may be,
or, in the case of the [__________] Serviced Mortgage Loan,
previously made or
proposed to be made by the [__________] Master Servicer, the Master
Servicer or
the Trustee, as applicable, that, as determined by the Master
Servicer, the
Special Servicer, the Trustee or the [__________] Master Servicer,
as
applicable, in accordance with the Servicing Standard (in the case
of the Master
Servicer or the Special Servicer), the "Servicing Standard" as
defined in the
[__________] Pooling and Servicing Agreement (in the case of the
[__________]
Master Servicer) or the standard of care set forth in Section
8.01(a) (with
respect to the Trustee), as applicable, with respect to such
P&I Advance will
not be ultimately recoverable from Late Collections, Insurance
Proceeds or
Liquidation Proceeds, or any other recovery on or in respect of
such Mortgage
Loan, [__________] Companion Loan, REO Loan or [__________]
Serviced Mortgage
Loan; provided that the Master Servicer will be permitted to
conclusively rely
upon any such nonrecoverability determination made by the Special
Servicer and,
with respect to the [__________] Loan only, the [__________] Master
Servicer.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously
made or proposed to be made in respect of a Mortgage Loan, REO Loan
or Companion
Loan by the Master Servicer, the Special Servicer or the Trustee,
as the case
may be, or, in the case of the [__________] Serviced Mortgage Loan,
made by the
[__________] Master Servicer, that, as determined by the Master
Servicer, the
Special Servicer, the Trustee or the [__________] Master Servicer,
as
applicable, in accordance with the Servicing Standard (in the case
of the Master
Servicer or the Special Servicer), the "Servicing Standard" as
defined in the
[__________] Pooling and Servicing Agreement (in the case of the
[__________]
Master Servicer) or the standard of care set forth in Section
8.01(a) (with
respect to the Trustee), as applicable, will not be ultimately
recoverable from
Late Collections, Insurance Proceeds, Liquidation Proceeds, or any
other
recovery on or in respect of such Mortgage Loan, Companion Loan,
REO Property or
the [__________] Serviced Mortgage Loan, as applicable; provided
that the Master
Servicer will be permitted to conclusively rely upon any such
nonrecoverability
determination made by the Special Servicer.
"Non-Registered Certificate": Unless and until registered under
the
Securities Act, Class X-C, Class X-P, Class G, Class H, Class J,
Class K, Class
L, Class M, Class N, Class O, Class P, Class Q, Class S, Class Z,
Class R-I or
Class R-II Certificate.
"Non-United States Person": Any Person other than a United
States
Person.
"Officer's Certificate": A certificate signed by a Servicing
Officer
of the Master Servicer or the Special Servicer, as the case may be,
or by a
Responsible Officer of the Trustee.
<PAGE>
"Opinion of Counsel": A written opinion of counsel (which
counsel
may be a salaried counsel for the Depositor, the Master Servicer or
the Special
Servicer) acceptable to and delivered to the Trustee or the Master
Servicer, as
the case may be, except that any opinion of counsel relating to (a)
the
qualification of REMIC I or REMIC II as a REMIC; (b) the
qualification of the
Additional Interest Grantor Trust as a grantor trust; (c)
compliance with the
REMIC Provisions or the Grantor Trust Provisions or (d) the
resignation of the
Master Servicer or the Special Servicer pursuant to Section 6.04
must be an
opinion of counsel who is in fact Independent of the Master
Servicer, the
Special Servicer or the Depositor, as applicable.
"Option Price": As defined in Section 3.18(c).
"Original Class Principal Balance": With respect to any Class
of
Sequential Pay Certificates, the Original Class Principal Balance
thereof as of
the Closing Date, in each case as specified in the Preliminary
Statement.
"Original Class X-C Notional Amount": $[__________].
"Original Class X-P Notional Amount": $[_________].
"Original Notional Amount": The Original Class X-C Notional
Amount
or the Original Class X-P Notional Amount, as the context
requires.
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any
other
interest therein, whether direct or indirect, legal or beneficial,
as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance
made
by the Master Servicer or the Trustee pursuant to Section 4.03(a)
and (b) as
applicable.
"P&I Advance Date": The Business Day immediately preceding
each
Distribution Date.
"Pari Passu Companion Loan": Each of the [__________] Companion
Loan
and the [__________] Companion Loan.
"Pari Passu Mortgage Loan": Each of the [__________] Loan and
the
[__________] Loan.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates for any Distribution Date,
[______]% per annum;
(ii) the
Class A-2 Certificates for any Distribution Date,
[______]% per annum;
(iii) the Class A-3 Certificates for any Distribution Date,
[______]% per annum;
(iv) the Class A-PB Certificates for any Distribution Date,
[______]% per annum;
(v) the Class A-4 Certificates for any Distribution Date, the
lesser of (1) [___]% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(vi) the Class A-5 Certificates for any Distribution Date, the
lesser of (1) [___]% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(vii) the Class A-1A Certificates for any Distribution Date,
the lesser of (1) [___]% per annum and (2) the Weighted Average
Net
Mortgage Rate for such date;
(viii) the Class A-M Certificates for any Distribution Date,
the lesser of (1) [___]% per annum and (2) the Weighted Average
Net
Mortgage Rate for such date;
(ix) the Class A-J Certificates for any Distribution Date, the
lesser of (1) [___]% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(x) the Class B Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date minus [____]%;
(xi) the Class C Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date minus [____]%;
(xii) the Class D Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date minus [____]%;
(xiii) the Class E Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date minus [____]%;
(xiv) the Class F Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
(xv) the Class G Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
(xvi) the Class H Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
<PAGE>
(xvii) the Class J Certificates for any Distribution Date, the
Weighted Average Net Mortgage Rate for such date;
(xviii) the Class K Certificates for any Distribution Date,
the Weighted Average Net Mortgage Rate for such date;
(xix) the Class L Certificates for any Distribution Date, the
lesser of (1) [___]% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(xx) the Class M Certificates for any Distribution Date, the
lesser of (1) [___]% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(xxi) the Class N Certificates for any Distribution Date, the
lesser of (1) [___]% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(xxii) the Class O Certificates for any Distribution Date, the
lesser of (1) [___]% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(xxiii) the Class P Certificates for any Distribution Date,
the lesser of (1) [___]% per annum and (2) the Weighted Average
Net
Mortgage Rate for such date;
(xxiv) the Class Q Certificates for any Distribution Date, the
lesser of (1) [___]% per annum and (2) the Weighted Average Net
Mortgage Rate for such date;
(xxv) the Class S Certificates for any Distribution Date, the
lesser of (1) [____]% per annum and (2) the Weighted Average
Net
Mortgage Rate for such date;
(xxvi) the Class X-C Certificates (1) for the initial
Distribution Date, [___]% per annum, and (2) for any subsequent
Distribution Date, the weighted average of the Class X-C Strip
Rates
for the respective Class X-C Components for such Distribution
Date;
provided, however, that the Pass-Through Rate applicable to the
Class X-C Certificates, in no circumstance shall be less than
zero;
(xxvii) the Class X-P Certificates for the initial
Distribution Date, [___]% per annum, and for any subsequent
Distribution Date, the weighted average of the Class X-P Strip
Rates
for the respective Class X-P Components for such Distribution
Date
(weighted on the basis of the respective Component Notional
Amounts
of such Components outstanding immediately prior to such
Distribution Date).
<PAGE>
"Paying Agent": The paying agent appointed pursuant to Section
8.16.
If no such paying agent has been appointed or if such paying agent
has been so
appointed but the Trustee has terminated such appointment, then the
Trustee
shall be the Paying Agent.
"Penalty Interest": With respect to any Mortgage Loan or
Companion
Loan (or successor REO Loan), any amounts collected thereon, other
than late
payment charges, Additional Interest, Prepayment Premiums or Yield
Maintenance
Charges, that represent penalty interest (arising out of a default)
in excess of
interest on the Stated Principal Balance of such Mortgage Loan or
Companion Loan
(or successor REO Loan) accrued at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate,
the
portion of the relevant Class evidenced by such Certificate,
expressed as a
percentage, the numerator of which is the Certificate Principal
Balance or
Certificate Notional Amount, as the case may be, of such
Certificate as of the
Closing Date, as specified on the face thereof, and the denominator
of which is
the Original Class Principal Balance or Original Notional Amount,
as the case
may be, of the relevant Class. With respect to a Residual
Certificate or Class Z
Certificate, the percentage interest in distributions to be made
with respect to
the relevant Class, as stated on the face of such Certificate.
"Periodic Payment": With respect to any Mortgage Loan or
Companion
Loan as of any Due Date, the scheduled payment of principal and/or
interest on
such Mortgage Loan or Companion Loan (exclusive of Additional
Interest),
including any Balloon Payment, that is actually payable by the
related Mortgagor
from time to time under the terms of the related Mortgage Note (as
such terms
may be changed or modified in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or by reason of a modification,
waiver or
amendment granted or agreed to by the Special Servicer pursuant to
Section
3.20).
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of
the Trustee if
otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States
or
any agency or instrumentality thereof (having original maturities
of
not more than 365 days); provided such obligations are backed by
the
full faith and credit of the United States. Such obligations must
be
limited to those instruments that have a predetermined fixed
dollar
amount of principal due at maturity that cannot vary or change or
be
liquidated prior to maturity. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a
single interest rate index plus a single fixed spread (if any),
and
move proportionately with that index;
(ii) repurchase obligations with respect to any security
described in clause (i) above (having original maturities of
not
more than 365 days); provided that the short-term deposit or
debt
obligations, of the party agreeing to repurchase such
obligations
are rated in the highest rating categories of each of S&P
and
Moody's or such lower rating as will not result in
qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies.
In
addition, its terms must have a predetermined fixed dollar amount
of
principal due at maturity that cannot vary or change. Interest
may
either be fixed or variable. If such interest is variable,
interest
must be tied to a single interest rate index plus a single
fixed
spread (if any), and move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits
and bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof
(having
original maturities of not more than 365 days), the short term
obligations of which are rated in the highest rating categories
of
each of S&P and Moody's or such lower rating as will not result
in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the
Rating
Agencies. In addition, its terms should have a predetermined
fixed
dollar amount of principal due at maturity that cannot vary or
change. In addition, its terms must have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such
interest
is variable, interest must be tied to a single interest rate
index
plus a single fixed spread (if any), and move proportionately
with
that index;
(iv) commercial paper (having original maturities of not more
than 365 days) of any corporation incorporated under the laws of
the
United States or any state thereof (or if not so incorporated,
the
commercial paper is United States Dollar denominated and
amounts
payable thereunder are not subject to any withholding imposed by
any
non-United States jurisdiction) which is rated in the highest
rating
category of each of S&P and Moody's or such lower rating as
will not
result in qualification, downgrading or withdrawal of the
ratings
then assigned to the Certificates, as evidenced in writing by
the
Rating Agencies.
The commercial paper by its terms must have a
predetermined fixed dollar amount of principal due at maturity
that
cannot vary or change. Interest may either be fixed or variable.
If
such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and
move
proportionately with that index;
(v) units of money market funds that maintain a constant asset
value and
which are rated in the highest applicable rating category
by Moody's and which are rated "AAAm" or "AAAm G" by S&P (or
such
lower rating as will not result in qualification, downgrading
or
withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies) and which seeks to
maintain a constant net asset value. In addition, its terms
must
have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change; and
(vi) any other obligation or security that constitutes a "cash
flow investment" within the meaning of Section 860G(a)(6) of
the
Code and is acceptable to each Rating Agency, evidence of which
acceptability shall be provided in writing by each Rating Agency
to
the Master Servicer, the Special Servicer and the Trustee;
provided,
however, in no event shall such other obligation or security be
rated less than "AA/A-1" or "Aa3/P+" by S&P or Moody's,
respectively;
provided that (1) no investment described hereunder shall evidence
either the
right to receive (x) only interest with respect to such investment
or (y) a
yield to maturity greater than 120% of the yield to maturity at par
of the
underlying obligations; and (2) no investment described hereunder
may be
purchased at a price greater than par if such investment may be
prepaid or
called at a price less than its purchase price prior to stated
maturity.
"Permitted Transferee": Any Transferee of a Residual
Certificate
other than a Disqualified Organization, a Plan, a Disqualified
Non-United States
Person, a partnership any partner of which, directly or indirectly,
is a
Disqualified Non-United States Person or a United States Person
with respect to
whom income on the Residual Certificate is allocable to a foreign
permanent
establishment or fixed base, within the meaning of an applicable
income tax
treaty, of such Person or any other United States Person.
"Person": Any individual, corporation, partnership, joint
venture,
association, joint-stock company, limited liability company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year
of
(i) REMIC I or (ii) REMIC II, the Holder of Certificates holding
the largest
Percentage Interest of the related Class of Residual
Certificates.
"Preliminary Memorandum": As defined in the Mortgage Loan
Purchase
Agreement.
"Preliminary Prospectus Supplement": As defined in the Mortgage
Loan
Purchase Agreement.
"Prepayment Assumption": For purposes of determining the accrual
of
original issue discount, market discount and premium, if any, on
the
Certificates for federal income tax purposes, 0% CPR (within the
meaning of the
Prospectus), except that it is assumed that each ARD Loan is repaid
on its
Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Mortgage Loan
that
was subject to a Principal Prepayment in full or in part during any
Collection
Period, which Principal Prepayment was applied to such Mortgage
Loan following
such Mortgage Loan's Due Date in such Collection Period, the amount
of interest
(net of the related Master Servicing Fee and, if applicable, the
Additional
Interest) accrued on the amount of such Principal Prepayment during
the period
from and after such Due Date and ending on the date such Principal
Prepayment
was applied to such Mortgage Loan, to the extent collected
(exclusive of any
related Prepayment Premium or Yield Maintenance Charge actually
collected).
<PAGE>
"Prepayment Interest Shortfall": With respect to any Mortgage
Loan
that was subject to a Principal Prepayment in full or in part
during any
Collection Period, which Principal Prepayment was applied to such
Mortgage Loan
prior to such Mortgage Loan's Due Date in such Collection Period,
the amount of
interest, to the extent not collected from the related Mortgagor
(without regard
to any Prepayment Premium or Yield Maintenance Charge actually
collected), that
would have accrued at a rate per annum equal to the sum of (x) the
related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate
on the amount
of such Principal Prepayment during the period commencing on the
date as of
which such Principal Prepayment was applied to such Mortgage Loan
and ending on
the day immediately preceding such Due Date, inclusive.
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires,
by a
Mortgagor in connection with a Principal Prepayment.
"Primary Collateral": With respect to any Crossed Loan, that
portion
of the Mortgaged Property designated as directly securing such
Crossed Loan and
excluding any Mortgaged Property as to which the related lien may
only be
foreclosed upon by exercise of the cross-collateralization
provisions of such
Crossed Loan.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change
from time to
time. If The Wall Street Journal ceases to publish the "prime
rate," then the
Master Servicer shall select an equivalent publication that
publishes such
"prime rate"; and if such "prime rate" is no longer generally
published or is
limited, regulated or administered by a governmental or
quasi-governmental body,
then the Master Servicer shall select a comparable interest rate
index. In
either case, such selection shall be made by the Master Servicer in
its sole
discretion and the Master Servicer shall notify the Trustee and the
Special
Servicer in writing of its selection.
"Principal Distribution Amount": With respect to any
Distribution
Date, the aggregate of the following:
(a) the aggregate of the principal portions of all Scheduled
Payments
(other than Balloon Payments) and any Assumed Scheduled
Payments
due or
deemed due in respect of the Mortgage Loans for their
respective
Due Dates
occurring during the related Collection Period, to the extent
not
previously received or advanced with respect to a Distribution
Date
prior to
the related Collection Period;
(b) the aggregate of all Principal Prepayments received on the
Mortgage
Loans during the related Collection Period;
(c) with respect to any Mortgage Loan as to which the related
Stated
Maturity
Date 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
related Mortgagor during the related Collection Period
(including
any Balloon Payment), in each case 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 such
Mortgage
Loan on a Due Date during or prior to the related Collection
Period and
not previously recovered;
(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
related
Mortgage
Loans during the related Collection Period and that were
identified
and applied by the Master Servicer and/or Special Servicer as
recoveries
of principal of such Mortgage Loans, 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 related Mortgage Loan on a Due Date during or prior to the
related
Collection Period and not previously recovered;
(e) with respect to any REO Properties, the aggregate of the
principal
portions of all Assumed Scheduled Payments deemed due in
respect
of the
related REO Loans for their respective Due Dates occurring
during
the
related Collection Period;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that
were
received
during the related Collection Period on such REO Properties and
that were
identified and applied by the Master Servicer and/or Special
Servicer
as recoveries of principal of the related REO Loans, 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 related REO Loan or the predecessor Mortgage
Loan
on a Due
Date during or prior to the related Collection Period and not
previously
recovered;
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal
Distribution
Amount for the
immediately preceding Distribution Date, over the aggregate
distributions of principal made on the Sequential Pay Certificates
on such
immediately preceding Distribution Date pursuant to Section
4.01;
(h) any amounts that were used to reimburse Nonrecoverable
Advances
(including
interest on such Nonrecoverable Advances) from principal
collections on the Mortgage Loans pursuant to Section 3.05(a)
hereof which
are
subsequently recovered on the related Mortgage Loan with respect
to
the
Distribution Date related to the period in which such recovery
occurs;
(i) any amounts that were used to reimburse Workout-Delayed
Reimbursement Amounts (including interest on such
Workout-Delayed
Reimbursement Amounts) from principal collections on the Mortgage
Loans
pursuant
to Section 3.05(a) hereof which are subsequently recovered on
the
related
Mortgage Loan with respect to the Distribution Date related to
the
period in
which such recovery occurs, less;
<PAGE>
(j) 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 Mortgage Loans pursuant to
Section
3.05(a) hereof with respect to such Distribution Date 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, in each case where such
principal
collections would have otherwise been included in the Principal
Distribution Amount for such Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan or Companion Loan that is received in
advance of
its scheduled Due Date; provided that it shall not include a
payment of
principal that is accompanied by an amount of interest representing
scheduled
interest due on any date or dates in any month or months subsequent
to the month
of prepayment.
"Privileged Person": Any Certificateholder, Certificate Owner,
any
Person identified to the Trustee or the Master Servicer, as
applicable, as a
prospective transferee of a Certificate or interest therein, any
Rating Agency,
any Mortgage Loan Seller, any Companion Holders, any party hereto,
any
Underwriter or any designee of the Depositor; provided that no
Certificate Owner
or prospective transferee of a Certificate or interest therein
shall be
considered a "Privileged Person" or be entitled to a password or
restricted
access as contemplated by Section 3.15 or Section 4.02 unless such
Person has
delivered to the Trustee or the Master Servicer, as applicable, a
certification
in the form of Exhibit K-1 or Exhibit K-2, as applicable which
certification is
available on the Trustee's Internet Website.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated [__________], as supplemented
by
the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus
Supplement": The final prospectus supplement dated [__________] of
the Depositor
relating to the registration of the Registered Certificates under
the Securities
Act.
"PTE 95-60": As defined in Section 5.02(c).
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(e).
"Purchase Price": With respect to any Mortgage Loan or REO Loan
purchased by the Mortgage Loan Seller pursuant to the applicable
Mortgage Loan
Purchase Agreement, by the Majority Subordinate Certificateholder,
the Companion
Holder or the Special Servicer as described in Section 3.18(c),
3.18(d) or
3.18(e), or by the Depositor, the Special Servicer, the Majority
Subordinate
Certificateholder or the Master Servicer pursuant to Section 9.01,
a cash price
equal to the outstanding principal balance of such Mortgage Loan or
REO Loan, as
of the date of purchase, together with (a) all accrued and unpaid
interest on
such Mortgage Loan or REO Loan at the related Mortgage Rate to but
not including
the Due Date in the Collection Period of purchase plus any accrued
interest on
P&I Advances made with respect to such Mortgage Loan, (b) all
related and
unreimbursed Servicing Advances plus any accrued and unpaid
interest thereon,
(c) any reasonable costs and expenses, including, but not limited
to, the cost
of any enforcement action, incurred by the Master Servicer, the
Special Servicer
or the Trust Fund in connection with any such purchase by a
Mortgage Loan Seller
(to the extent not included in clause (b) above) and (d) any other
Additional
Trust Fund Expenses in respect of such Mortgage Loan (including any
Additional
Trust Fund Expenses previously reimbursed or paid by the Trust Fund
but not so
reimbursed by the related Mortgagor or other party or from
Insurance Proceeds or
condemnation proceeds or any other collections in respect of the
Mortgage Loan
or the related Mortgaged Property from a source other than the
Trust Fund), or
in the case of any Loan Pair, the purchase price specified in the
related
Intercreditor Agreement; provided that the Purchase Price shall not
be reduced
by any outstanding P&I Advance.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A qualified institutional
buyer
within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or
bonding
company qualified to write the related Insurance Policy in the
relevant
jurisdiction (i) with a minimum insurance financial strength or
claims paying
ability rating of at least "A3" by Moody's, and "A" by S&P (or
the obligations
of which are guaranteed or backed by a company having such a claims
paying
ability), and (ii) with respect to the fidelity bond and errors and
omissions
Insurance Policy required to be maintained pursuant to Section
3.07(c), an
insurance company that has a claims paying ability rated no lower
than two
rating categories (without regard to pluses or minuses or
numerical
qualifications) below the rating assigned to the then highest rated
outstanding
Certificate, but in no event lower than "A" by S&P and "A3" by
Moody's (or, if
not rated by Moody's, then at least "A" by two other nationally
recognized
statistical rating organizations (which may include S&P)), or,
in the case of
clauses (i) and (ii), such other rating as each Rating Agency shall
have
confirmed in writing will not cause such Rating Agency to
downgrade, qualify or
withdraw the then-current rating assigned to any of the
Certificates that are
then currently being rated by such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must,
on
the date of substitution: (i) have an outstanding Stated Principal
Balance,
after application of all scheduled payments of principal and
interest due during
or prior to the month of substitution, not in excess of the Stated
Principal
Balance of the deleted Mortgage Loan as of the Due Date in the
calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not
less than
the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same
Due Date as
the deleted Mortgage Loan; (iv) accrue interest on the same basis
as the deleted
Mortgage Loan (for example, on the basis of a 360-day year
consisting of twelve
30-day months); (v) have a remaining term to stated maturity not
greater than,
and not more than two years less than, the remaining term to stated
maturity of
the deleted Mortgage Loan; (vi) have an original Loan-to-Value
Ratio not higher
than that of the deleted Mortgage Loan and a current Loan-to-Value
Ratio not
higher than the then current Loan-to-Value Ratio of the deleted
Mortgage Loan;
(vii) comply as of the date of substitution with all of the
representations and
warranties set forth in the applicable Mortgage Loan Purchase
Agreement; (viii)
have an Environmental Assessment that indicates no adverse
environmental
conditions with respect to the related Mortgaged Property and which
will be
delivered as a part of the related Servicing File; (ix) have an
original Debt
Service Coverage Ratio (calculated to include the additional debt
from any
encumbrance) of not less than the original Debt Service Coverage
Ratio
(calculated to include the additional debt from any encumbrance) of
the deleted
Mortgage Loan and a current Debt Service Coverage Ratio (calculated
to include
the additional debt from any encumbrance) of not less than the
current Debt
Service Coverage Ratio (calculated to include the additional debt
from any
encumbrance) of the deleted Mortgage Loan; (x) be determined by an
Opinion of
Counsel (at the applicable Mortgage Loan Seller's expense) to be a
"qualified
replacement mortgage" within the meaning of Section 860G(a)(4) of
the Code; (xi)
not have a maturity date after the date two years prior to the
Rated Final
Distribution Date; (xii) not be substituted for a deleted Mortgage
Loan unless
the Trustee has received prior confirmation in writing by each
Rating Agency
that such substitution will not result in the withdrawal,
downgrade, or
qualification of the rating assigned by the Rating Agency to any
Class of
Certificates then rated by the Rating Agency (the cost, if any, of
obtaining
such confirmation to be paid by the Mortgage Loan Seller); (xiii)
have a date of
origination that is not more than 12 months prior to the date of
substitution;
(xiv) have been approved by the Controlling Class Representative
(or, if there
is no Controlling Class Representative then serving, by the Holders
of
Certificates representing a majority of the Voting Rights allocated
to the
Controlling Class); (xv) not be substituted for a deleted Mortgage
Loan if it
would result in the termination of the REMIC status of REMIC I or
REMIC II or
the imposition of tax on either of such REMICs other than a tax on
income
expressly permitted or contemplated to be received by the terms of
this
Agreement, as determined by an Opinion of Counsel (at the
applicable Mortgage
Loan Seller's expense); and (xvi) become a part of the same Loan
Group as the
deleted Mortgage Loan. In the event that one or more mortgage loans
are
substituted for one or more deleted Mortgage Loans, then the
amounts described
in clause (i) shall be determined on the basis of aggregate
principal balances
and the rates described in clause (ii) above and the remaining term
to stated
maturity referred to in clause (v) above shall be determined on a
weighted
average basis; provided that no individual Mortgage Loan shall have
a Net
Mortgage Rate that is less than the highest Pass-Through Rate of
any Class of
Sequential Pay Certificates bearing a fixed rate. When a Qualified
Substitute
Mortgage Loan is substituted for a deleted Mortgage Loan, the
applicable
Mortgage Loan Seller shall certify that the Mortgage Loan meets all
of the
requirements of the above definition and shall send such
certification to the
Trustee. No substitutions will be permitted for the [__________]
Loan.
"Rated Final Distribution Date": The Distribution Date in
[_________], the first Distribution Date after the 24th month
following the end
of the amortization term for the Mortgage Loan that, as of the
Cut-Off Date, has
the longest remaining amortization term (without regard to the
related Stated
Maturity Date).
"Rating Agency": Each of Moody's and S&P.
"Realized Loss": With respect to: (1) each Defaulted Mortgage
Loan
as to which a Final Recovery Determination has been made, or with
respect to any
successor REO Loan as to which a Final Recovery Determination has
been made as
to the related REO Property, an amount (not less than zero) equal
to (a) the
unpaid principal balance of such Mortgage Loan or REO Loan, as the
case may be,
as of the commencement of the Collection Period in which the Final
Recovery
Determination was made, plus (b) without taking into account the
amount
described in subclause (1)(d) of this definition, all accrued but
unpaid
interest on such Mortgage Loan or such REO Loan, as the case may
be, at the
related Mortgage Rate to but not including the Due Date in the
Collection Period
in which the Final Recovery Determination was made (exclusive of
any portion
thereof that constitutes default interest in excess of the Mortgage
Rate,
Additional Interest, Prepayment Premiums or Yield Maintenance
Charges), plus (c)
any related unreimbursed Servicing Advances and any unreimbursed
interest on any
Advances as of the commencement of the Collection Period in which
the Final
Recovery Determination was made, together with any new related
Servicing
Advances made during such Collection Period, minus (d) all payments
and
proceeds, if any, received in respect of such Mortgage Loan or the
REO Property
that relates to such REO Loan, as the case may be, during the
Collection Period
in which such Final Recovery Determination was made; (2) each
defaulted Mortgage
Loan as to which any portion of the principal or previously accrued
interest
(other than Additional Interest and Penalty Interest) payable
thereunder was
canceled in connection with a bankruptcy or similar proceeding
involving the
related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan
granted or agreed to by the Special Servicer pursuant to Section
3.20, the
amount of such principal and/or interest so canceled; (3) each
Mortgage Loan as
to which the Mortgage Rate thereon has been permanently reduced and
not
recaptured for any period in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to Section
3.20, the amount of the consequent reduction in the interest
portion of each
successive Periodic Payment due thereon (each such Realized Loss
shall be deemed
to have been incurred on the Due Date for each affected Periodic
Payment); and
(4) each Mortgage Loan for which a Final Recovery Determination has
been made,
to the extent not included in clause (1) above, Nonrecoverable
Advances
(including interest on such Nonrecoverable Advance) to the extent
amounts have
been paid from the Principal Distribution Amount pursuant to
Section 3.05(a)
hereof.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which
such
Distribution Date occurs.
"Registered Certificate": Any Class A-1, Class A-2, Class A-3,
Class
A-PB, Class A-4, Class A-5, Class A-1A, Class A-M, Class A-J, Class
B, Class C,
Class D, Class E or Class F Certificate.
"Regular Certificate": Any REMIC II Certificate other than a
Class
R-II Certificate.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be
amended from
time to time, and subject to such clarification and interpretation
as have been
provided by the Commission in the adopting release (Asset-Backed
Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan.
7, 2005)) or
by the staff of the Commission, or as may be provided by the
Commission or its
staff from time to time.
"Regulation AB Companion Loan Securitization": As defined in
Section
3.30(a).
<PAGE>
"Reimbursement Rate": The rate per annum applicable to the
accrual
of interest on Servicing Advances in accordance with Section
3.03(d) and on P&I
Advances in accordance with Section 4.03(d), which rate per annum
is equal to
the Prime Rate.
"Relevant Servicing Criteria": The Servicing Criteria applicable
to
the various parties, as set forth on Exhibit S attached hereto.
For
clarification purposes, multiple parties can have responsibility
for the same
Relevant Servicing Criteria. With respect to a Servicing
Participant engaged by
the Trustee, the Master Servicer or the Special Servicer, the term
"Relevant
Servicing Criteria" may refer to a portion of the Relevant
Servicing Criteria
for each of the Master Servicer, the Special Servicer or the
Trustee, as
applicable.
"REMIC": A "real estate mortgage investment conduit" as defined
in
Section 860D of the Code.
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be
administered hereunder
with respect to which a separate REMIC election is to be made and,
consisting
of: (i) all of the Mortgage Loans as from time to time are subject
to this
Agreement and all payments under and proceeds of such Mortgage
Loans received
after the Closing Date (excluding all Additional Interest on such
Mortgage
Loans), together with all documents included in the related
Mortgage Files and
any related Escrow Payments and Reserve Funds; (ii) all amounts
held from time
to time with respect to a Mortgage Loan in the Interest Reserve
Account, the
Certificate Account, the Distribution Account, the Gain-on-Sale
Reserve Account
and any REO Account; (iii) any REO Property acquired in respect of
a Mortgage
Loan (or the Trust Fund's beneficial interest in the Mortgaged
Property securing
the [__________] Loan acquired under the [__________] Pooling and
Servicing
Agreement); (iv) the rights of the Depositor under Sections 2, 3,
9, 10, 11, 12,
13, 14, 16, 17, 18 and 19 of each of the Mortgage Loan Purchase
Agreements with
respect to such Mortgage Loans; and (v) the rights of the mortgagee
under all
Insurance Policies with respect to such Mortgage Loans, in each of
the foregoing
clauses exclusive of the interest of the holder of a Companion Loan
therein.
"REMIC I Pass-Through Rate": As set forth in the Preliminary
Statement.
"REMIC I Principal Balance": The principal balance of any REMIC
I
Regular Interest outstanding as of any date of determination. As of
the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular
Interest shall equal
the original REMIC I Principal Balance as set forth in the
Preliminary Statement
hereto. On each Distribution Date, the REMIC I Principal Balance of
each REMIC I
Regular Interest shall be permanently reduced by all distributions
of principal
deemed to have been made in respect of such REMIC I Regular
Interest on such
Distribution Date pursuant to Section 4.01(h), and shall be further
permanently
reduced on such Distribution Date by all Realized Losses and
Additional Trust
Fund Expenses deemed to have been allocated thereto on such
Distribution Date
pursuant to Section 4.04(b) and shall be increased on such
Distribution Date by
Certificate Deferred Interest deemed to have been allocated thereto
on such
Distribution Date pursuant to Section 4.04(c).
<PAGE>
"REMIC I Regular Interest": Any of the separate uncertificated
beneficial ownership interests in REMIC I issued hereunder, and
designated as a
"regular interest" in REMIC I, held as an asset of REMIC II and
having the
original REMIC I Principal Balance and REMIC I Pass-Through Rate as
described in
the Preliminary Statement hereto.
"REMIC II": The segregated pool of assets consisting of all of
the
REMIC I Regular Interests and all amounts held from time to time,
to the extent
related to REMIC II, in the Distribution Account, conveyed in trust
to the
Trustee for the benefit of REMIC II, as holder of the REMIC I
Regular Interests,
and the Holders of the Class R-II Certificates pursuant to Section
2.10, with
respect to which a separate REMIC election is to be made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class A-3,
Class
A-PB, Class A-4, Class A-5, Class A-1A, Class A-M, Class A-J, Class
B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class M,
Class N, Class O, Class P, Class Q, Class S, Class X-C, Class X-P
or Class R-II
Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear
at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and
related
provisions, and proposed, temporary and final Treasury regulations
and any
published rulings, notices and announcements promulgated
thereunder, as the
foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property,
gross
income of the character described in Section 856(d) of the
Code.
"REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on
behalf of the
Trustee in trust for the Certificateholders, which shall be
entitled
"[__________], as Special Servicer, in trust for the registered
holders of
Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through
Certificates, Series [__________]."
"REO Acquisition": The acquisition of any REO Property by the
Trust
Fund pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of any REO
Property
pursuant to Section 3.18(h).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property (or, with respect to
the
[__________] Loan, the Trust Fund's proportionate beneficial
interest in the
Mortgaged Property acquired by the [__________] Trustee pursuant to
the
[__________] Pooling and Servicing Agreement). Each REO Loan shall
be deemed to
be outstanding for so long as the related REO Property remains part
of REMIC I
and deemed to provide for Periodic Payments of principal and/or
interest equal
to its Assumed Scheduled Payment and otherwise to have the same
terms and
conditions as its predecessor Mortgage Loan (such terms and
conditions to be
applied without regard to the default on such predecessor Mortgage
Loan and the
acquisition of the related REO Property as part of the Trust Fund).
Each REO
Loan shall be deemed to have an initial unpaid principal balance
and Stated
Principal Balance equal to the unpaid principal balance and Stated
Principal
Balance, respectively, of its predecessor Mortgage Loan (or, if
applicable,
Companion Loan) as of the date of the related REO Acquisition. All
Scheduled
Payments (other than a Balloon Payment), Assumed Scheduled Payments
(in the case
of a Balloon Mortgage Loan delinquent in respect of its Balloon
Payment) and
other amounts due and owing, or deemed to be due and owing, in
respect of the
predecessor Mortgage Loan as of the date of the related REO
Acquisition, shall
be deemed to continue to be due and owing in respect of an REO
Loan. In
addition, Nonrecoverable Advances and Unliquidated Advances
(including interest
on such Nonrecoverable Advances and Unliquidated Advances) with
respect to such
REO Loan that were paid from collections on the Mortgage Loans and
resulted in
principal distributed to the Certificateholders being reduced
pursuant to
Section 3.05(a) hereof, shall be deemed outstanding until recovered
or until a
Final Recovery Determination is made. Collections in respect of
each REO Loan
(after provision for amounts to be applied to the payment of, or to
be
reimbursed to the Master Servicer, the Special Servicer or the
Trustee for the
payment of, the costs of operating, managing, selling, leasing and
maintaining
the related REO Property or for the reimbursement of the Master
Servicer, the
Special Servicer or the Trustee for Advances as provided in this
Agreement)
shall be treated: first, as a recovery of Nonrecoverable Advances
and
Unliquidated Advances (including interest on such Nonrecoverable
Advances or
Unliquidated Advances) with respect to such REO Loan, in each case
that relate
to Advances that were paid from collections on the Mortgage Loans
and resulted
in principal distributed to the Certificateholders being reduced
pursuant to
Section 3.05(a) hereof; second, as a recovery of accrued and unpaid
interest on
such REO Loan at the related Mortgage Rate to but not including the
Due Date in
the Collection Period of receipt (exclusive of any portion thereof
that
constitutes Additional Interest); third, as a recovery of principal
of such REO
Loan to the extent of its entire unpaid principal balance; and
fourth, in
accordance with the normal servicing practices of the Master
Servicer, as a
recovery of any other amounts due and owing in respect of such REO
Loan,
including, without limitation, (i) Yield Maintenance Charges,
Prepayment
Premiums and Penalty Interest and (ii) Additional Interest and
other amounts, in
that order. Notwithstanding the foregoing, all amounts payable or
reimbursable
to the Master Servicer, the Special Servicer or the Trustee in
respect of the
predecessor Mortgage Loan as of the date of the related REO
Acquisition,
including, without limitation, any unpaid Servicing Fees and any
unreimbursed
Servicing Advances and P&I Advances, together with any interest
accrued and
payable to the Master Servicer, the Special Servicer or the Trustee
in respect
of such Servicing Advances and P&I Advances in accordance with
Sections 3.03(d)
and 4.03(d), shall continue to be payable or reimbursable to the
Master
Servicer, the Special Servicer or the Trustee, as the case may be,
in respect of
an REO Loan pursuant to Section 3.05(a).
"REO Property": A Mortgaged Property acquired on behalf and in
the
name of the Trustee (or, in the case of the [__________] Loan, the
Trust Fund's
proportionate beneficial interest in the Mortgaged Property
acquired by the
[__________] Trustee pursuant to the [__________] Pooling and
Servicing
Agreement) for the benefit of the Certificateholders (subject to
the related
Intercreditor Agreement with respect to a Mortgaged Property
securing a Loan
Pair) through foreclosure, acceptance of a deed-in-lieu of
foreclosure or
otherwise in accordance with applicable law in connection with the
default or
imminent default of a Mortgage Loan.
<PAGE>
"REO Revenues": All income, rents, profits and proceeds derived
from
the ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Reportable Event": As defined in Section 8.17(j).
"Reporting Party": The Master Servicer, the Special Servicer,
the
Trustee, an Additional Servicer or a Servicing Participant.
"Request for Release": A request signed by a Servicing Officer,
as
applicable, of the Master Servicer in the form of Exhibit D-1
attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an appraisal of the related Mortgaged Property from
an
Independent Appraiser selected by the Special Servicer.
"Required Appraisal Date": With respect to any Required
Appraisal
Mortgage Loan, the earliest date on which any of the items
specified in clauses
(i) through (vi) of the first paragraph of the definition of
Required Appraisal
Mortgage Loan occurs.
"Required Appraisal Mortgage Loan": Each Mortgage Loan (i) that
is
[__] days or more delinquent in respect of any Periodic Payments,
(ii) that
becomes an REO Loan), (iii) that has been modified by the Special
Servicer to
reduce the amount of any Periodic Payment (other than a Balloon
Payment), (iv)
with respect to which a receiver is appointed and continues in such
capacity in
respect of the related Mortgaged Property, (v) with respect to
which a Mortgagor
declares bankruptcy or with respect to which the related Mortgagor
is subject to
a bankruptcy proceeding, (vi) with respect to which any Balloon
Payment on such
Mortgage Loan has not been paid by its scheduled maturity date,
unless the
Master Servicer has, on or prior to [__] days following the Stated
Maturity
Date, received written evidence from an institutional lender of
such lender's
binding commitment to refinance such Mortgage Loan within [__] days
after the
Due Date of such Balloon Payment (provided that if such refinancing
does not
occur during such time specified in the commitment, the related
Mortgage Loan
will immediately become a Required Appraisal Mortgage Loan) or
(vii) that is
outstanding [__] days after the third anniversary of an extension
of its Stated
Maturity Date; provided, however, that a Required Appraisal
Mortgage Loan will
cease to be a Required Appraisal Mortgage Loan:
(a) with respect to the circumstances described in clauses (i)
and
(iii)
above, when the related Mortgagor has made three consecutive
full
and timely
Periodic Payments under the terms of such Mortgage Loan (as
such terms
may be changed or modified in connection with a bankruptcy or
similar
proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the
Special
Servicer
pursuant to Section 3.20); and
(b) with respect to the circumstances described in clauses (iv),
(v)
and (vi)
above, when such circumstances cease to exist in the good faith
reasonable
judgment of the Special Servicer and in accordance with the
Servicing
Standard, but, with respect
<PAGE>
to any
bankruptcy or insolvency proceedings described in clauses (iv)
and
(v), no
later than the entry of an order or decree dismissing such
proceeding, and with respect to the circumstances described in
clause (vi)
above, no
later than the date that the Special Servicer agrees to an
extension
pursuant to Section 3.20 hereof;
so long as at that time no circumstance identified in clauses (i)
through (vi)
above exists that would cause the Mortgage Loan to continue to be
characterized
as a Required Appraisal Mortgage Loan.
"Required Appraisal Value": An amount equal to 90% of the
Appraised
Value (net of any prior liens and estimated liquidation expenses
and any other
downward adjustments the Special Servicer may deem appropriate
(without implying
any obligation to do so) based upon its review of the Appraisal and
such other
information as the Special Servicer may deem appropriate) of the
Mortgaged
Property related to the subject Required Appraisal Mortgage Loan as
determined
by a Required Appraisal or letter update or internal valuation, if
applicable;
provided that for purposes of determining any Appraisal Reduction
Amount in
respect of such Required Appraisal Mortgage Loan, such Appraisal
Reduction
Amount shall be amended annually to reflect the Required Appraisal
Value
determined pursuant to any Required Appraisal or letter update or
internal
valuation, if applicable, of a Required Appraisal conducted
subsequent to the
original Required Appraisal performed pursuant to Section
3.09(a).
"Reserve Account": The account or accounts created and
maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on
behalf of the
mortgagee representing reserves for environmental remediation,
repairs, capital
improvements, tenant improvements and/or leasing commissions with
respect to the
related Mortgaged Property.
"Residual Certificate": A Class R-I Certificate or Class R-II
Certificate.
"Responsible Officer": When used with respect to (i) the
initial
Trustee, any officer or assistant officer in the Corporate Trust
Office of the
initial Trustee, and (ii) any successor trustee, any officer or
assistant
officer in the corporate trust department of the successor trustee,
or any other
officer or assistant officer of the successor trustee customarily
performing
functions similar to those performed by any of the above designated
officers to
whom a particular matter is referred by the successor trustee
because of such
officer's knowledge of and familiarity with the particular
subject.
"Restricted Servicer Reports": Each of the CMSA Servicer
Watchlist,
CMSA Operating Statement Analysis, CMSA NOI Adjustment Worksheet
and CMSA
Comparative Financial Status Report. If a Restricted Servicer
Report is filed
with the Commission, it shall thereafter be an Unrestricted
Servicer Report.
"S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc., or its successor in interest. If
neither such
Rating Agency nor any successor remains in existence, "S&P"
shall be deemed to
refer to such other nationally recognized statistical rating agency
or other
comparable Person designated by the Depositor, notice of which
designation shall
be given to the Trustee, the Master Servicer and the Special
Servicer, and
specific ratings of S&P herein referenced shall be deemed to
refer to the
equivalent ratings of the party so designated.
"Sarbanes-Oxley Act": The Sarbanes-Oxley Act of 2002.
"Sarbanes-Oxley Certification": A written certification signed by
an
officer of the Master Servicer that complies with (i) the
Sarbanes-Oxley Act of
2002, as amended from time to time, including all necessary
Regulation AB
certification requirements, and (ii) Exchange Act Rules 13a-14(d)
and 15d-14(d),
as in effect from time to time.
"Scheduled Payment": With respect to any Mortgage Loan, for any
Due
Date following the Cut-Off Date as of which it is outstanding, the
scheduled
Periodic Payment of principal and interest (other than Additional
Interest) on
such Mortgage Loan that is or would be, as the case may be, payable
by the
related Mortgagor on such Due Date under the terms of the related
Mortgage Note
as in effect on the Closing Date, without regard to any subsequent
change in or
modification of such terms in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to Section
3.20 or acceleration of principal by reason of default, and
assuming that each
prior Scheduled Payment has been made in a timely manner.
"Section 302 Requirements": As defined in Section 8.17(b).
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3,
Class
A-PB, Class A-4, Class A-5, Class A-1A or Class X Certificate.
"Sequential Pay Certificates": Any Class A-1, Class A-2, Class
A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A, Class A-M, Class A-J,
Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L,
Class M, Class N, Class O, Class P, Class Q or Class S
Certificate.
"Servicer Fee Amount": With respect to each Sub-Servicer and
any
date of determination, the aggregate of the products obtained by
multiplying,
for each Mortgage Loan serviced by such Sub-Servicer, (a) the
Stated Principal
Balance of such Mortgage Loan as of the end of the immediately
preceding
Collection Period and (b) the servicing fee rate specified in the
related
Sub-Servicing Agreement for such Mortgage Loan. With respect to the
Master
Servicer and any date of determination, the aggregate of the
products obtained
by multiplying, for each Mortgage Loan (a) the Stated Principal
Balance of such
Mortgage Loan as of the end of the immediately preceding Collection
Period and
(b) the difference between the Master Servicing Fee Rate for such
Mortgage Loan
over the servicing fee rate (if any) applicable to such Mortgage
Loan as
specified in any Sub-Servicing Agreement related to such Mortgage
Loan.
"Servicer Reports": Any of the Restricted Servicer Reports, the
Unrestricted Servicer Reports, the CMSA Loan Setup File, the CMSA
Loan Periodic
Update File, the CMSA Financial File, CMSA Property File, the CMSA
Advance
Recovery Report and a report reconciling Penalty Interest and late
payment
charges collected with interest on Advances and Additional Trust
Fund Expenses.
"Servicing Account": The account or accounts created and
maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out
of pocket" costs and expenses incurred by or on behalf of the
Master Servicer,
the Special Servicer or the Trustee in connection with the
servicing of a
Mortgage Loan or a Companion Loan (other than the [__________]
Serviced Mortgage
Loan and its related Companion Loan), or in connection with the
administration
of any related REO Property, including, but not limited to, the
cost of (a)
compliance with the obligations of the Master Servicer and the
Special Servicer,
if any, set forth in Section 3.02 and Section 3.03(c), (b) the
preservation,
insurance, restoration, protection and management of a Mortgaged
Property,
including the cost of any "forced placed" insurance policy
purchased by the
Master Servicer to the extent such cost is allocable to a
particular Mortgaged
Property that the Master Servicer or the Special Servicer is
required to cause
to be insured pursuant to Section 3.07(a), (c) obtaining any
Insurance Proceeds
or any Liquidation Proceeds of the nature described in clauses (i)
through (v)
of the definition of "Liquidation Proceeds," (d) any enforcement or
judicial
proceedings with respect to a Mortgaged Property, including,
without limitation,
foreclosures, (e) any Required Appraisal or other appraisal
expressly required
or permitted to be obtained hereunder, (f) the operation,
management,
maintenance and liquidation of any such REO Property, including,
without
limitation, appraisals and compliance with Section 3.16(a) (to the
extent not
covered by available funds in the REO Account) and Section 3.20(h)
(to the
extent not paid by the related Mortgagor) and (g) compliance with
the
obligations of the Master Servicer or the Trustee set forth in
Section 2.03(a)
or (b). Notwithstanding anything to the contrary, "Servicing
Advances" shall not
include allocable overhead of the Master Servicer or the Special
Servicer, such
as costs for office space, office equipment, supplies and related
expenses,
employee salaries and related expenses and similar internal costs
and expenses
or costs and expenses incurred by any such party in connection with
its purchase
of a Mortgage Loan or REO Property, or costs or expenses expressly
required to
be borne by the Master Servicer or Special Servicer without
reimbursement
pursuant to the terms of this Agreement.
"Servicing Criteria": The "servicing criteria" set forth in
Item
1122(d) of Regulation AB.
"Servicing Fees": With respect to each Mortgage Loan, Companion
Loan
and REO Loan, the Master Servicing Fee and the Special Servicing
Fee.
"Servicing File": Any documents, certificates, opinions and
reports
(other than documents required to be part of the related Mortgage
File)
delivered by the related Mortgagor in connection with, or relating
to the
origination and servicing of any Mortgage Loan or Companion Loan
which are
reasonably required for the ongoing administration of the Mortgage
Loan and the
Companion Loan, including management agreements, cash management
agreements,
lockbox agreements, franchise agreements, franchise comfort letters
(and
evidence of required notification of transfer), appraisals,
surveys, engineering
reports, environmental reports, operation and maintenance (O&M)
plans, financial
statements, leases, rent rolls and tenant estoppels.
"Servicing Officer": Any officer or employee of the Master
Servicer
or the Special Servicer involved in, or responsible for, the
administration and
servicing of the Mortgage Loans, whose name and specimen signature
appear on a
list of servicing officers furnished by such party to the Trustee
and the
Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing Participant": Any Additional Servicer, Sub-Servicer,
Subcontractor or any other Person, other than the Master Servicer
and the
Special Servicer, that is performing activities addressed by the
Servicing
Criteria, unless such Person's activities relate only to 5% or less
of the
Mortgage Loans.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standard": With respect to the Master Servicer or
the
Special Servicer, as applicable, the servicing and administration
of the
Mortgage Loans and the Companion Loans for which it is responsible
hereunder (a)
in the same manner in which, and with the same care, skill,
prudence and
diligence with which the Master Servicer or the Special Servicer,
as the case
may be, generally services and administers similar mortgage loans
with similar
borrowers (i) for other third-parties, giving due consideration to
customary and
usual standards of practice of prudent institutional commercial
mortgage lenders
servicing their own loans or (ii) held in its own portfolio,
whichever standard
is higher, (b) with a view to the maximization of the recovery on
such Mortgage
Loan on a net present value basis and the best interests of the
Certificateholders and the Trust Fund or, if a Loan Pair is
involved, with a
view towards the maximization of recovery on such Co-Lender Loan
Pair to the
Certificateholders, the related Companion Holders and the Trust
Fund (as a
collective whole, taking into account that the Subordinate
Companion Loans are
subordinate to the related Co-Lender Loans and the Passu Companion
Loans are
pari passu in right of payment with the related Pari Passu Loan, in
each case to
the extent set forth in the related Intercreditor Agreement), and
(c) without
regard to (i) any relationship that the Master Servicer or the
Special Servicer,
as the case may be, or any Affiliate thereof may have with the
related
Mortgagor, the Depositor, any Mortgage Loan Seller or any other
party to the
transaction or any Affiliate thereof; (ii) the ownership of any
Certificate or
Companion Loan (or other interest in any Mortgage Loan or Companion
Loan) by the
Master Servicer or the Special Servicer, as the case may be, or by
any Affiliate
thereof; (iii) the right of the Master Servicer or the Special
Servicer, as the
case may be, to receive compensation or other fees for its services
rendered
pursuant to this Agreement; (iv) the obligations of the Master
Servicer to make
Advances; (v) the ownership, servicing or management by the Master
Servicer or
the Special Servicer, as the case may be, or any Affiliate thereof
for others of
any other mortgage loans or mortgaged property; (vi) any obligation
of the
Master Servicer or any Affiliate of the Master Servicer to
repurchase or
substitute a Mortgage Loan as a Mortgage Loan Seller; (vii) any
obligation of
the Master Servicer or any Affiliate of the Master Servicer to cure
a breach of
a representation and warranty with respect to a Mortgage Loan; and
(viii) any
debt the Master Servicer or Special Servicer or any Affiliate of
either has
extended to any Mortgagor or any Affiliate of such Mortgagor.
"Servicing Transfer Event": With respect to any Mortgage Loan,
the
occurrence of any of the events described in clauses (a) through
(h) of the
definition of "Specially Serviced Mortgage Loan".
"Similar Law": As defined in Section 5.02(c).
"Single Certificate": For purposes of Section 4.02, a
hypothetical
Certificate of any Class of Regular Certificates evidencing a
$1,000
denomination.
"Special Reserve Account": As used herein, the Trustee may create
a
segregated custodial account or accounts pursuant to Section
2.02(d) in trust
for the Certificateholders, which shall be entitled "[__________],
as Trustee,
in trust for the registered holders of Wachovia Bank Commercial
Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series [__________]
and [name of
party providing the funds]". Any such account will be an Eligible
Account.
"Special Servicer": With respect to each Mortgage Loan,
[__________], or, any successor special servicer appointed as
herein provided.
"Special Servicing Fee": With respect to each Specially
Serviced
Mortgage Loan and each REO Loan, the fee designated as such and
payable to the
Special Servicer pursuant to the first paragraph of Section
3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, [___]% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan or
Companion
Loan as to which any of the following events have occurred:
(a) the related Mortgagor shall have (i) failed to make within
[__]
days of the date when due any Balloon Payment; provided, however,
that if the
Mortgagor continues to make its Assumed Scheduled Payment and
diligently pursues
refinancing, a Servicing Transfer Event shall not occur until [__]
days
following such default (or, if the Mortgagor has produced a written
refinancing
commitment that is reasonably acceptable to the Special Servicer
and the
Controlling Class Representative has given its consent (which
consent shall be
deemed denied if not granted within [__] Business Days), [__] days
following
such default; provided that if such refinancing does not occur
during the time
period specified in such written refinancing commitment, a
Servicing Transfer
Event will be deemed to occur); or (ii) failed to make when due any
Periodic
Payment (other than a Balloon Payment), and such failure has
continued
unremedied for [__] days; or
(b) the Master Servicer or Special Servicer (in the case of the
Special Servicer, with the consent of the Controlling Class
Representative)
shall have determined (with written notice of any such
determination by the
Special Servicer to be promptly given by the Special Servicer to
the Master
Servicer), in its good faith reasonable judgment, and in accordance
with the
Servicing Standard, based on communications with the related
Mortgagor, that a
default in making a Periodic Payment (including a Balloon Payment)
or any other
default under the applicable Mortgage Loan documents that would
(with respect to
such other default) materially impair the value of the Mortgaged
Property as
security for the Mortgage Loan and, if applicable, Companion Loan
or otherwise
would materially adversely affect the interests of
Certificateholders and would
continue unremedied beyond the applicable grace period under the
terms of the
Mortgage Loan (or, if no grace period is specified, for [__] days;
provided that
a default that would give rise to an acceleration right without any
grace period
shall be deemed to have a grace period equal to zero) is likely to
occur and is
likely to remain unremedied for at least [__] days; or
(c) there shall have occurred a default (other than as described
in
clause (a) above) that the Master Servicer or the Special Servicer
(in the case
of the Special Servicer, with the consent of the Controlling
Class
Representative) shall have determined (with written notice of any
such
determination by the Special Servicer to be promptly given by the
Special
Servicer to the Master Servicer), in its good faith and reasonable
judgment, and
in accordance with the Servicing Standard, materially impairs the
value of the
Mortgaged Property as security for the Mortgage Loan and, if
applicable,
Companion Loan, or otherwise materially adversely affects the
interests of
Certificateholders and that continues unremedied beyond the
applicable grace
period under the terms of the Mortgage Loan (or, if no grace period
is
specified, for [__] days; provided that a default that gives rise
to an
acceleration right without any grace period shall be deemed to have
a grace
period equal to zero); provided, however, that, in the event the
Special
Servicer with the consent of the Controlling Class Representative
determines
that the related Mortgagor does not need to maintain terrorism
insurance as
provided in Section 3.07(a), no default related to the failure to
obtain such
insurance shall be deemed to be outstanding for purposes of this
clause(c); or
(d) a decree or order of a court or agency or supervisory
authority
having jurisdiction in the premises in an involuntary case under
any present or
future federal or state bankruptcy, insolvency or similar law or
the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of
debt, marshaling of assets and liabilities or similar proceedings,
or for the
winding-up or liquidation of its affairs, shall have been entered
against the
related Mortgagor; provided that, if such decree or order is
discharged,
dismissed or stayed within [__] days it shall not be a Specially
Serviced
Mortgage Loan (and no Special Servicing Fees shall be payable);
or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or
relating to
such Mortgagor or of or relating to all or substantially all of its
property; or
(f) the related Mortgagor shall admit in writing its inability
to
pay its debts generally as they become due, file a petition to take
advantage of
any applicable insolvency, bankruptcy or reorganization statute,
make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of
its obligations; or
<PAGE>
(g) the Master Servicer shall have force placed insurance
against
damages or losses arising from acts of terrorism due to the failure
of the
related borrower to maintain or cause such insurance to be
maintained and (1)
subsequent to such force placement such borrower fails to maintain
or cause to
be maintained insurance coverage against damages for losses arising
from acts of
terrorism for a period of [__] days (or such shorter time period as
the
Controlling Class Representative may consent to) or (2) the Master
Servicer
fails to have been reimbursed from any Servicing Advances made in
connection
with the force placement of such insurance coverage (unless the
circumstances
giving rise to such forced placement of such insurance coverage
have otherwise
been cured and the Master Servicer has been reimbursed for any
Servicing
Advances made in connection with the forced placement of such
insurance
coverage); or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to
the related
Mortgaged Property;
provided, however, that a Companion Loan shall be deemed to be a
Specially
Serviced Mortgage Loan if the related Co-Lender Loan becomes a
Specially
Serviced Mortgage Loan and a Co-Lender Loan shall be deemed to be a
Specially
Serviced Mortgage Loan if the related Companion Loan becomes a
Specially
Serviced Mortgage Loan; provided, further, however that a Mortgage
Loan or
Companion Loan will cease to be a Specially Serviced Mortgage
Loan:
(i) with respect to the circumstances described in clause (a)
above, when the related Mortgagor has made three consecutive
full
and timely Periodic Payments under the terms of such Mortgage
Loan
or Companion Loan (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving
the
related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant
to
Section 3.20);
(ii) with respect to the circumstances described in clauses
(b), (d), (e) and (f) above, when such circumstances cease to
exist
in the good faith reasonable judgment of the Special Servicer and
in
accordance with the Servicing Standard, but, with respect to
any
bankruptcy or insolvency proceedings described in clauses (d),
(e)
and (f), no later than the entry of an order or decree
dismissing
such proceeding;
(iii) with respect to the circumstances described in clause
(c) and (g) above, when such default is cured; and
(iv) with respect to the circumstances described in clause (h)
above, when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a)
through (h)
above exists that would cause the Mortgage Loan (or, with respect
to a Co-Lender
Loan, the related Companion Loan, or, with respect to a Companion
Loan, the
related Co-Lender Loan) to continue to be characterized as a
Specially Serviced
Mortgage Loan; provided no additional default is foreseeable in the
reasonable
good faith judgment of the Special Servicer.
<PAGE>
"[__________] 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 [__________] Loan.
"[__________] Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated as of [_________] by and between
[__________], as
A-Note Holder and [__________], as B-Note Holder relating to the
[__________]
Loan Pair.
"[__________] Loan": That certain Mortgage Loan which is included
in
the Trust Fund (identified as loan number [___] on the Mortgage
Loan Schedule).
"[__________] Loan Pair": The [__________] Loan, together with
the
[__________] Companion Loan.
"Startup Day": With respect to each of REMIC I and REMIC II, the
day
designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the States of New
York,
[_________] and [_________] and by any other state or local taxing
authorities;
provided that such states and such other state and local taxing
authorities, by
notice to the Trustee, assert jurisdiction over the trust fund or
any portion
thereof, or which, according to an Opinion of Counsel addressed to
the Trustee,
have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the
Due
Date specified in the Mortgage Note (as in effect on the Closing
Date) on which
the last payment of principal is due and payable under the terms of
the Mortgage
Note (as in effect on the Closing Date), without regard to any
change in or
modification of such terms in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to Section
3.20 and, in the case of an ARD Loan, without regard to its
Anticipated
Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan, as
of
any date of determination, an amount (which amount shall not be
less than zero)
equal to (x) the Cut-Off Date Balance of such Mortgage Loan (or, in
the case of
a Qualified Substitute Mortgage Loan, the unpaid principal balance
after
application of all principal payments due on or before the related
date of
substitution, whether or not received), plus (y) any Mortgage
Deferred Interest
added to the principal balance of such Mortgage Loan on or before
the end of the
immediately preceding Collection Period minus (z) the sum of:
(i) the principal portion of each Periodic Payment due on such
Mortgage Loan after the Cut-Off Date or the related date of
substitution, as the case may be, to the extent received from
the
Mortgagor or advanced by the [__________] Master Servicer, the
Master Servicer or the Trustee and distributed to
Certificateholders
on or before such date of determination;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-Off Date or the related date of
substitution, as the case may be, to the extent distributed to
Certificateholders on or before such date of determination;
(iii) the principal portion of all Insurance Proceeds and
Liquidation Proceeds received with respect to such Mortgage
Loan
after the Cut-Off Date or the related date of substitution, as
the
case may be, to the extent distributed to Certificateholders on
or
before such date of determination;
(iv) the principal portion of any Realized Loss incurred in
respect of such Mortgage Loan during the related Collection
Period;
and
(v) any amount of reduction in the outstanding principal
balance of such Mortgage Loan resulting from a Deficient
Valuation
that occurred prior to the end of the Collection Period for the
most
recent Distribution Date.
With respect to any REO Loan, as of any date of determination,
an
amount equal to (x) the Stated Principal Balance of the predecessor
Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the
sum of:
(A) the principal portion of any P&I Advance made with
respect to the predecessor Mortgage Loan on or after the date
of the related REO Acquisition, to the extent distributed to
Certificateholders on or before such date of determination;
and
(B) the principal portion of all Insurance Proceeds,
Liquidation Proceeds and REO Revenues received with respect to
such REO Loan, to the extent distributed to Certificateholders
on or before such date of determination.
A Mortgage Loan, an REO Loan shall be deemed to be part of the
Trust
Fund and to have an outstanding Stated Principal Balance until the
Distribution
Date on which the payments or other proceeds, if any, received in
connection
with a Liquidation Event in respect thereof are to be (or, if no
such payments
or other proceeds are received in connection with such Liquidation
Event, would
have been) distributed to Certificateholders. In addition, to the
extent that
principal from general collections is used to reimburse
Nonrecoverable Advances
pursuant to Section 3.05(a)(vii) or Workout Delayed Reimbursement
Amounts
pursuant to Section 3.05(a)(vii) (which are only reimbursable from
principal
collections on the Mortgage Pool as set forth in this Agreement)
and such amount
has not been included as part of the Principal Distribution Amount,
such amount
shall nevertheless be deemed to be part of the Principal
Distribution Amount for
purposes of clauses (i), (ii) and (iii) above. Notwithstanding the
foregoing, if
any Mortgage Loan is paid in full, liquidated or otherwise removed
from the
Trust Fund, commencing as of the first Distribution Date following
the
Collection Period during which such event occurred, the Stated
Principal Balance
of such Mortgage Loan will be zero.
With respect to any Companion Loan on any date of determination,
the
Stated Principal Balance shall equal the unpaid principal balance
of such
Companion Loan.
<PAGE>
"Subcontractor": Any third-party or affiliated vendor,
subcontractor
or other Person utilized by a Servicer, a Sub-Servicer, the Trustee
or the
Custodian, as applicable, that is not responsible for the overall
servicing (as
"servicing" is commonly understood by participants in the
commercial
mortgage-backed securities market) of Mortgage Loans but performs
one or more
discrete functions identified in Item 1122(d) of Regulation AB with
respect to
Mortgage Loans.
"Subordinate Companion Holder": The holders of any of the
Subordinate Companion Loans.
"Subordinate Companion Loan": Each of the [__________]
Companion
Loan, the [__________] Companion Loan, the [__________] Companion
Loan and the
[__________] Companion Loan, individually or collectively, as the
context may
require.
"Subordinated Certificate": Any Class A-M, Class A-J, Class B,
Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class
M, Class N, Class O, Class P, Class Q, Class S, Class Z, Class R-I
or Class R-II
Certificate.
"Sub-Servicer": Any Person with which the Master Servicer, the
Special Servicer or an Additional Servicer has entered into a
Sub-Servicing
Agreement for the performance (whether directly or through
Sub-Servicers or
Subcontractors) of a substantial portion of the material servicing
functions
required to be performed by the Master Servicer or the Sepcial
Servicer under
this Agreement or an Additional Servicer under a servicing
agreement, with
respect to some or all of the Mortgage Loans, that are identified
in Item
1122(d) of Regulation AB.
"Sub-Servicing Agreement": The written contract between the
Master
Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage
Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(a) hereof, an amount equal to the excess,
if any, of
the Purchase Price of the Mortgage Loan being replaced calculated
as of the date
of substitution over the Stated Principal Balance of the related
Qualified
Substitute Mortgage Loan as of the date of substitution. In the
event that one
or more Qualified Substitute Mortgage Loans are substituted (at the
same time)
for one or more deleted Mortgage Loans, the Substitution Shortfall
Amount shall
be determined as provided in the preceding sentence on the basis of
the
aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans
being replaced
and the aggregate Stated Principal Balances of the related
Qualified Substitute
Mortgage Loan or Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Matters Person": With respect to each of REMIC I and REMIC
II,
the Person designated as the "tax matters person" of such REMIC in
the manner
provided under Treasury Regulations Section 1.860F-4(d) and
Temporary Treasury
Regulations Section 301.6231(a)(7)-1T, which Person shall be the
applicable
Plurality Residual Certificateholder.
<PAGE>
"Tax Returns": The federal income tax returns on Internal
Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit
(REMIC) Income
Tax Return, including Schedule Q thereto, Quarterly Notice to
Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any
successor forms,
to be filed on behalf of REMIC I and REMIC II due to its
classification as a
REMIC under the REMIC Provisions, and the federal income tax return
to be filed
on behalf of the Additional Interest Grantor Trust due to its
classification as
a grantor trust under the Grantor Trust Provisions, together with
any and all
other information, reports or returns that may be required to be
furnished to
the Certificateholders or filed with the Internal Revenue Service
under any
applicable provisions of federal tax law or any other governmental
taxing
authority under applicable State and Local Tax laws.
"Time of Sale": As defined in that certain Underwriting
Agreement,
dated as of [__________], among Wachovia Commercial Mortgage
Securities, Inc.,
[__________], [__________], [__________], [__________],
[__________],
[__________] and [__________]
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership
Interest in a Certificate.
"Trust Fund": Collectively, (i) all of the assets of each of REMIC
I
and REMIC II, and (ii) the Additional Interest Grantor Trust
Assets.
"Trustee": [__________], its successor in interest, or any
successor
trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and REO Loan
for
any Distribution Date, an amount equal to one month's interest for
the most
recently ended calendar month (calculated on a 30/360 Basis),
accrued at the
Trustee Fee Rate on the Stated Principal Balance of such Mortgage
Loan or REO
Loan, as the case may be, outstanding immediately following the
prior
Distribution Date (or, in the case of the initial Distribution
Date, as of the
Closing Date).
"Trustee Fee Rate": [___]% per annum.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and
filed
pursuant to the Uniform Commercial Code, as in effect in any
relevant
jurisdiction.
"Underwriter": Each of [__________], [__________],
[__________],
[__________], [__________] and [__________] or, in each case, its
successor in
interest.
<PAGE>
"United States Person": A citizen or resident of the United
States,
a corporation or partnership (including an entity treated as a
corporation or
partnership for federal income tax purposes) created or organized
in, or under
the laws of, the United States, any State thereof or the District
of Columbia
unless in the case of a partnership, Treasury Regulations are
adopted that
provide otherwise, an estate whose income is includable in gross
income for
United States federal income tax purposes regardless of its source
or a trust if
a court within the United States is able to exercise primary
supervision over
the administration of the trust, and one or more United States
Persons have the
authority to control all substantial decisions of the trust, all
within the
meaning of Section 7701(a)(30) of the Code (or, to the extent
provided in
applicable Treasury regulations, certain trusts in existence on
August 20, 1996,
that are eligible to elect to be treated as United States
Persons).
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person
that made the
Advance hereunder, on the one hand, and the Trust Fund, on the
other, as part of
a Workout-Delayed Reimbursement Amount pursuant to subsections (ii)
and (vi) of
Section 3.05(a) but that has not been recovered from the Mortgagor
or otherwise
from collections on or the proceeds of the Mortgage Loan or REO
Property in
which the Trust Fund holds a beneficial interest in respect of
which the Advance
was made.
"Unrestricted Servicer Reports": Each of the CMSA Delinquent
Loan
Status Report, CMSA Historical Loan Modification and Corrected
Mortgage Loan
Report, CMSA Loan Level Reserve/LOC Report, CMSA Historical
Liquidation Report,
CMSA REO Status Report and the CMSA Advance Recovery Report.
"USAP": The Uniform Single Attestation Program for Mortgage
Bankers.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times
during the term
of this Agreement, 100% of the Voting Rights shall be allocated
among the
Holders of the Regular Certificates. Ninety-six percent (96%) of
the Voting
Rights shall be allocated among the Class A-1, Class A-2, Class
A-3, Class A-PB,
Class A-4, Class A-5, Class A-1A, Class A-M, Class A-J, Class B,
Class C, Class
D, Class E, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class
N, Class O, Class P, Class Q and Class S Certificates in proportion
to the
respective Class Principal Balances of their Certificates (which
proportion
shall be calculated as equal to the product of 96% and a fraction,
the numerator
of which is equal to the aggregate Certificate Balance of the
related Class of
Certificates (adjusted as provided in the immediately succeeding
provisos) and
the denominator of which is equal to the aggregate Certificate
Balances of all
Classes of Certificates referenced above, determined as of the
Distribution Date
immediately preceding such time); provided that, solely for the
purpose of
determining the Voting Rights of the Classes of Sequential Pay
Certificates, the
aggregate Appraisal Reduction Amount (determined as set forth
herein) shall be
treated as Realized Losses with respect to the calculation of the
Certificate
Principal Balances thereof; provided, further, however, that the
aggregate
Appraisal Reduction Amount shall not reduce the Class Principal
Balance of any
Class for purposes of determining the Controlling Class, the
Controlling Class
Representative or the Majority Subordinate Certificateholder. Four
percent (4%)
in the aggregate of the Voting Rights shall be allocated to the
Class X
Certificates (allocated, pro rata, between the Class X-C and Class
X-P
Certificates based upon their Notional Amounts). The Class Z
Certificates and
the Residual Certificates shall have no voting rights. Voting
Rights allocated
to a Class of Certificateholders shall be allocated among such
Certificateholders in standard proportion to the Percentage
Interests evidenced
by their respective Certificates. In addition, if either the Master
Servicer or
the Special Servicer is the holder of any Certificate, neither of
the Master
Servicer or Special Servicer, in its capacity as a
Certificateholder, shall have
Voting Rights with respect to matters concerning compensation
affecting the
Master Servicer or the Special Servicer.
"[_________]": [__________] or its successor in interest.
"[__________] Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of [__________] between
the Depositor
and [_________] and relating to the transfer of the [_________]
Mortgage Loans
to the Depositor.
"[_________] Mortgage Loans": Each of the Mortgage Loans
transferred
and assigned to the Depositor pursuant to the [__________] Mortgage
Loan
Purchase Agreement.
"Weighted
Average Net Mortgage Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted
average, expressed
as a percentage and rounded to six decimal places, of the
respective Net
Mortgage Rates applicable to the Mortgage Loans as of the first day
of the
related Collection Period, weighted on the basis of their
respective Stated
Principal Balances immediately following the preceding Distribution
Date.
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advance made with respect to such
Mortgage Loan
on or before the date such Mortgage Loan becomes (or, but for the
making of
three Monthly Payments under its modified terms, would then
constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and
unpaid)
interest on such Advances, to the extent that (i) such Advance (and
any interest
thereon) is not reimbursed to the Person who made such Advance on
or before the
date, if any, on which such Mortgage Loan becomes a Corrected
Mortgage Loan and
(ii) the amount of such Advance (and any interest thereon) becomes
an obligation
of the Mortgagor to pay such amount over a period of time rather
than
immediately or on the next Due Date under the terms of the modified
loan
documents.
"Workout Fee": With respect to each Corrected Mortgage Loan, the
fee
designated as such and payable to the Special Servicer pursuant to
the second
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage
Loan,
1.0%.
"Yield Maintenance Charge": Payments paid or payable, as the
context
requires, on a Mortgage Loan as the result of a Principal
Prepayment thereon,
not otherwise due thereon in respect of principal or interest,
which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to
compensate the
holder for reinvestment losses based on the value of an interest
rate index at
or near the time of prepayment. Any other prepayment premiums,
penalties and
fees not so calculated will not be considered "Yield Maintenance
Charges." In
the event that a Yield Maintenance Charge shall become due for any
particular
Mortgage Loan, the Master Servicer shall be required to follow the
terms and
provisions contained in the applicable Mortgage Note; provided,
however, in the
event the particular Mortgage Note shall not specify the U.S.
Treasuries which
shall be used in determining the discount rate or the reinvestment
yield to be
applied in such calculation, the Master Servicer shall be required
to use those
U.S. Treasuries having maturity dates most closely approximating
the maturity of
such Mortgage Loan. Accordingly if either no U.S. Treasury issue,
or more than
one U.S. Treasury issue, shall coincide with the term over which
the Yield
Maintenance Charge shall be calculated (which depending on the
applicable
Mortgage Note is based on the remaining average life of the
Mortgage Loan or the
actual term remaining through the Maturity Date), the Master
Servicer shall use
the U.S. Treasury whose reinvestment yield is the lowest, with such
yield being
based on the bid price for such issue as published in The Wall
Street Journal on
the date that is [__] days prior to the date that the Yield
Maintenance Charge
shall become due and payable (or, if such bid price is not
published on that
date, the next preceding date on which such bid price is so
published) and
converted to a monthly compounded nominal yield. The monthly
compounded nominal
yield ("MEY") is derived from the reinvestment yield or discount
rate and shall
be defined as MEY = (12X {(1+"BEY"/2)^1/6}-1) where BEY is defined
as the U.S.
Treasury Reinvestment Yield which is in decimal form and not in
percentage, and
1/6 is the exponential power to which a portion of the equation is
raised. For
example, using a BEY of 5.50%, the MEY = (12 X {(1+
.055/2)^0.16667}-1) where
0.055 is the decimal version of the percentage 5.5% and 0.16667 is
the decimal
version of the exponential power. The MEY in the above calculation
is 5.44%.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise
convey to the
Trustee, in trust, without recourse, for the benefit of the
Certificateholders
(and for the benefit of the other parties to this Agreement as
their respective
interests may appear) all the right, title and interest of the
Depositor, in, to
and under (i) the Mortgage Loans and all documents included in the
related
Mortgage Files and Servicing Files, (ii) the rights of the
Depositor under
Sections 2, 3, 9, 10, 11, 12, 13, 14, 16, 17, 18 and 19 of each of
the Mortgage
Loan Purchase Agreements, and (iii) all other assets included or to
be included
in the Trust Fund. Such assignment includes all interest and
principal received
or receivable on or with respect to the Mortgage Loans and due
after the Cut-Off
Date. The transfer of the Mortgage Loans and the related rights and
property
accomplished hereby is absolute and, notwithstanding Section 11.07,
is intended
by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above the Depositor shall direct, and hereby
represents and
warrants that it has directed, each Mortgage Loan Seller pursuant
to the
applicable Mortgage Loan Purchase Agreement, to deliver to and
deposit with, or
cause to be delivered to and deposited with, the Trustee or a
Custodian
appointed thereby (with a copy to the Master Servicer and Special
Servicer), on
or before the Closing Date, the Mortgage File for each Mortgage
Loan so assigned
<PAGE>
and the Servicing File to the Master Servicer. The Special Servicer
may request
the Master Servicer to deliver a copy of the Servicing File for any
Mortgage
Loan (other than a Specially Serviced Mortgage Loan, which will not
be at the
expense of the Special Servicer) at the expense of the Special
Servicer. None of
the Trustee, any Custodian, the Master Servicer or the Special
Servicer shall be
liable for any failure by any Mortgage Loan Seller or the Depositor
to comply
with the document delivery requirements of the applicable Mortgage
Loan Purchase
Agreement and this Section 2.01(b).
(c) If any Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Mortgage Loan, any of the
documents
and/or instruments referred to in clauses (ii), (iii), (vi) (if
recorded) and
(viii) of the definition of "Mortgage File," with evidence of
recording thereon,
solely because of a delay caused by the public recording office
where such
document or instrument has been delivered for recordation, the
delivery
requirements of the related Mortgage Loan Purchase Agreement and
Section 2.01(b)
shall be deemed to have been satisfied as to such non-delivered
document or
instrument, and such non-delivered document or instrument shall be
deemed to
have been included in the Mortgage File; provided that a photocopy
of such
non-delivered document or instrument (certified by the applicable
Mortgage Loan
Seller to be a true and complete copy of the original thereof
submitted for
recording) is delivered to the Trustee or a Custodian appointed
thereby on or
before the Closing Date, and either the original of such
non-delivered document
or instrument, or a photocopy thereof, with evidence of recording
thereon, is
delivered to the Trustee or such Custodian within [__] days of the
Closing Date
(or within such longer period after the Closing Date as the Trustee
may consent
to, which consent shall not be unreasonably withheld so long as the
applicable
Mortgage Loan Seller is, in good faith, attempting to obtain from
the
appropriate county recorder's office such original or photocopy).
If the
applicable Mortgage Loan Seller cannot deliver, or cause to be
delivered, as to
any Mortgage Loan, any of the documents and/or instruments referred
to in
clauses (ii), (iii), (vi) (if recorded) and (viii) of the
definition of
"Mortgage File" (or, with respect to the [__________] Serviced
Mortgage Loan, a
photocopy thereof) with evidence of recording thereon, for any
other reason,
including, without limitation, that such non-delivered document or
instrument
has been lost, the delivery requirements of the applicable Mortgage
Loan
Purchase Agreement and Section 2.01(b) shall be deemed to have been
satisfied as
to such non-delivered document or instrument and such non-delivered
document or
instrument shall be deemed to have been included in the Mortgage
File; provided
that a photocopy of such non-delivered document or instrument (with
evidence of
recording thereon) is delivered to the Trustee or a Custodian
appointed thereby
on or before the Closing Date.
If, on the Closing Date as to any Mortgage Loan, the applicable
Mortgage Loan Seller does not deliver in complete and recordable
form any one of
the assignments in favor of the Trustee referred to in clause (iv)
or (v) of the
definition of "Mortgage File" (or, with respect to the [__________]
Serviced
Mortgage Loan, a photocopy thereof), the applicable Mortgage Loan
Seller may
provisionally satisfy the delivery requirements of the related
Mortgage Loan
Purchase Agreement and Section 2.01(b) by delivering with respect
to such
Mortgage Loan on the Closing Date an omnibus assignment of such
Mortgage Loan;
provided that all required original assignments with respect to
such Mortgage
Loan in fully complete and recordable form shall be delivered to
the Trustee or
its Custodian within [__] days of the Closing Date (or within such
longer period
as the Trustee in its discretion may permit).
<PAGE>
(d) The Trustee shall, for a fee paid to the Trustee by the
Depositor on the Closing Date as to each Mortgage Loan, promptly
(and in any
event within [__] days following the latest of (i) the Closing
Date, (ii) the
delivery of all assignments and UCC Financing Statements to the
Trustee and
(iii) the date on which the Trustee receives, with respect to the
original
recorded or filed documents relating to such assignments and UCC
Financing
Statements, all necessary recording and filing information required
for the
recording or filing of such assignments and UCC Financing
Statements) cause to
be submitted for recording or filing, as the case may be, in the
appropriate
public office for real property records or UCC Financing
Statements, as
appropriate and to the extent timely delivered to the Trustee in
final,
recordable form, each assignment of Mortgage, assignment of
Assignment of Leases
and any other recordable documents (to the extent the Trustee has
actual
knowledge that such documents are to be recorded) relating to each
such Mortgage
Loan, in favor of the Trustee referred to in clause (iv)(a), (b)
and (c),
respectively, of the definition of "Mortgage File" and each UCC-2
and UCC-3
assignment in favor of the Trustee and so delivered to the Trustee
and referred
to in clause (viii) of the definition of "Mortgage File." The
applicable
Mortgage Loan Seller shall reimburse the Trustee for all reasonable
costs and
expenses incurred for recording any documents described in clause
(iv)(c) of the
definition of "Mortgage File." Each such assignment, UCC-2 and
UCC-3 shall
reflect that the recorded original should be returned by the public
recording
office to the Trustee or its designee following recording, and each
such UCC-2
and UCC-3 assignment shall reflect that the file copy thereof
should be returned
to the Trustee or its designee following filing; provided that in
those
instances where the public recording office retains the original
assignment of
Mortgage or assignment of Assignment of Leases, the Trustee shall
obtain
therefrom a certified copy of the recorded original, at the expense
of the
Depositor. If any such document or instrument is lost or returned
unrecorded or
unfiled, as the case may be, because of a defect therein, the
Trustee shall
direct the related Mortgage Loan Seller pursuant to the applicable
Mortgage Loan
Purchase Agreement to promptly prepare or cause to be prepared a
substitute
therefor or cure such defect, as the case may be, and thereafter
the Trustee
shall upon receipt thereof cause the same to be duly recorded or
filed, as
appropriate. Upon request, the Trustee shall forward to the Master
Servicer a
copy of each of the aforementioned recorded assignments following
the Trustee's
receipt thereof, to the extent not previously provided.
(e) All documents and records in the Servicing File in possession
of
the Depositor or the Mortgage Loan Sellers (except attorney client
privileged
communications, draft documents and any documents or materials
prepared by the
Mortgage Loan Sellers or their Affiliates for internal uses,
including, without
limitation, internal correspondence and credit analysis of the
Mortgage Loan
Sellers) that relate to the Mortgage Loans and that are not
required to be a
part of a Mortgage File in accordance with the definition thereof
(including any
original letters of credit), together with all Escrow Payments and
Reserve
Accounts in the possession thereof, shall be delivered to the
Master Servicer or
such other Person as may be directed by the Master Servicer (at the
expense of
the applicable Mortgage Loan Seller) on or before the Closing Date
and shall be
held by the Master Servicer on behalf of the Trustee in trust for
the benefit of
the Certificateholders; provided, however, the Master Servicer
shall have no
responsibility for holding documents created or maintained by the
Special
Servicer hereunder and not delivered to the Master Servicer.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian
and the
Master Servicer on or before the Closing Date and hereby represents
and warrants
that it has delivered a copy of a fully executed counterpart of
each Mortgage
Loan Purchase Agreement, as in full force and effect on the Closing
Date.
Section 2.02 Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this
Agreement,
acknowledges receipt of the Depositor's assignment to it of the
Depositor's
right, title and interest in the assets that constitute the Trust
Fund, and
further acknowledges receipt by it or a Custodian on its behalf,
subject to the
provisos in the definition of "Mortgage File" and the provisions of
Section 2.01
and subject to the further limitations on review provided for in
Section 2.02(b)
and the exceptions noted on the schedule of exceptions of (i) the
Mortgage File
delivered to it for each Mortgage Loan and (ii) a copy of a fully
executed
counterpart of each Mortgage Loan Purchase Agreement, all in good
faith and
without notice of any adverse claim, and declares that it or a
Custodian on its
behalf holds and will hold such documents and the other documents
received by it
that constitute portions of the Mortgage Files, and that it holds
and will hold
the Mortgage Loans and other assets included in the Trust Fund, in
trust for the
exclusive use and benefit of all present and future
Certificateholders and, with
respect to any original document in the Mortgage File for a Loan
Pair, any
present or future Companion Holders. The Trustee hereby certifies
to each of the
Depositor, the Master Servicer, the Special Servicer and each
Mortgage Loan
Seller that except as identified in the schedule of exceptions,
which is
attached hereto as Exhibit C-1 without regard to the proviso in the
definition
of "Mortgage File," each of the original executed Mortgage Notes
(or lost note
affidavit), the Mortgage (or an executed copy thereof), the
lender's title
policy (original or copy or marked-up title commitment marked as
binding and
countersigned by the title company or its authorized agent or an
agreement to
provide the same pursuant to binding escrow instructions executed
by an
authorized representative of the title company), a copy of any
related Ground
Leases, the original (or copy if the original has been delivered to
the Master
Servicer) of any related letters of credit (and the related
transfer or
assignment documents, if applicable), as described in clauses (i),
(ii), (vii),
(ix)(a) and (xii), respectively, of the definition of Mortgage File
are in its
possession.
With respect to the schedule of exceptions described in the
preceding paragraph, within [__] Business Days (or, in the
Controlling Class
Representative's reasonable discretion, [__] Business Days) of the
Closing Date,
with respect to the documents specified in clauses (i), (ii),
(vii), (ix)
(solely with respect to Ground Leases) and (xii) of the definition
of Mortgage
File, the related Mortgage Loan Seller shall cure any material
exception listed
therein (for the avoidance of doubt, any deficiencies with respect
to the
documents specified in clause (ii) resulting solely from a delay in
the return
of the related documents from the applicable recording office,
shall be cured in
the time and manner described in Section 2.01(c)). If such
exception is not so
cured, the related Mortgage Loan Seller shall either (1) repurchase
the related
Mortgage Loan, (2) with respect to exceptions relating to clause
(xii) of the
definition of "Mortgage File", deposit with the Paying Agent (who
shall promptly
notify the Master Servicer thereof) an amount, to be held in a
Special Reserve
Account, equal to the amount of the undelivered letter of credit
(in the
alternative, the related Mortgage Loan Seller may deliver to the
Paying Agent,
with a certified copy to the Master Servicer and Trustee, a letter
of credit for
the benefit of the Master Servicer on behalf of the Trustee and
upon the same
terms and conditions as the undelivered letter of credit) which the
Master
Servicer on behalf of the Trustee may use (or draw upon, as the
case may be)
under the same circumstances and conditions as the Master Servicer
would have
been entitled to draw on the undelivered letter of credit, or (3)
with respect
to any exceptions relating to clauses (i), (ii) and (vii), deposit
with the
Paying Agent on behalf of the Trustee an amount, to be held in
trust in a
Special Reserve Account, equal to 25% of the Stated Principal
Balance of the
related Mortgage Loan. Any letter of credit or funds deposited
pursuant to
clauses (2) and (3) shall be held pursuant to the related Mortgage
Loan Purchase
Agreement by the Paying Agent until the earlier of (x) the date on
which the
Master Servicer certifies to the Trustee and the Controlling
Class
Representative that such exception has been cured (or the Trustee
certifies the
same to the Controlling Class Representative), at which time such
funds or
letter of credit, as applicable, shall be returned to the related
Mortgage Loan
Seller and (y) [__] Business Days or, if the Controlling Class
Representative
extends the cure period, [__] Business Days after the Closing Date;
provided,
however, that if such exception is not cured within such [__]
Business Days or
[__] Business Days, as the case may be, (A) in the case of clause
(2), the
Paying Agent shall retain such funds on deposit in the related
Special Reserve
Account, or (B) in the case of clause (3), the related Mortgage
Loan Seller
shall repurchase the related Mortgage Loan in accordance with the
terms and
conditions of Section 2.03(b) or the related Mortgage Loan Purchase
Agreement,
at which time such funds shall be applied to the Purchase Price of
the related
Mortgage Loan.
(b) In addition, within [__] days after the Closing Date (and if
any
exceptions are noted, a schedule of exceptions again every [__]
days thereafter
until the second anniversary of the Closing Date, and a schedule of
exceptions
every [__] days thereafter until the fifth anniversary of the
Closing Date, and
thereafter upon request by any party hereto, any Mortgage Loan
Seller or the
Majority Subordinate Certificateholder), the Trustee or the
Custodian on its
behalf will review the Mortgage Files and certify (in a
certificate
substantially in the form of Exhibit C-2) to each of the Depositor,
the Master
Servicer, the Special Servicer and each Mortgage Loan Seller (with
copies to the
Majority Subordinate Certificateholder) that, with respect to each
Mortgage Loan
(and with respect to a Companion Loan and the [__________] Serviced
Mortgage
Loan, only those items required pursuant to the definition of
"Mortgage File")
listed in the Mortgage Loan Schedule, except as specifically
identified in the
schedule of exceptions annexed thereto, (i) without regard to the
proviso in the
definition of "Mortgage File," all documents specified in clauses
(i), (ii),
(iv)(a), (v) and (vii), and to the extent provided in the related
Mortgage File
and actually known by a Responsible Officer of the Trustee to be
required,
clauses (iii), (iv)(b), (iv)(c), (vi), (viii), (ix)(a) and (xii) of
the
definition of "Mortgage File" are in its possession, (ii) all
documents
delivered or caused to be delivered by the applicable Mortgage Loan
Seller
constituting the related Mortgage File have been reviewed by it and
appear
regular on their face and appear to relate to such Mortgage Loan,
(iii) based on
such examination and only as to the foregoing documents, the
information set
forth in the Mortgage Loan Schedule for such Mortgage Loan with
respect to the
items specified in clauses (v) and (vi)(c) of the definition of
"Mortgage Loan
Schedule" is correct and (iv) solely with respect to the Companion
Loans, all
documents specified in clause (xiii) of the definition of Mortgage
File are in
its possession. Further, with respect to the documents described in
clause
(viii) of the definition of Mortgage File, the Trustee may assume,
for purposes
of the certification delivered in this Section 2.02(b) and for
purposes of
determining (subject to the proviso at the end of this sentence)
where to file
UCC Financing Statements, that the related Mortgage File should
include one
state level UCC Financing Statement filing in the state of
incorporation of the
Mortgagor for each Mortgaged Property (or with respect to any
Mortgage Loan that
has two or more Mortgagors, for each Mortgagor); provided, however,
that to the
extent the Trustee has actual knowledge or is notified of any
fixture or real
property UCC Financing Statements filed in the county of the state
where the
related Mortgaged Property is located, the Trustee shall file an
assignment to
the Trust Fund with respect to such UCC Financing Statements in the
appropriate
jurisdiction under the UCC at the expense of the related Mortgage
Loan Seller.
The UCC Financing Statements to be assigned to the Trust Fund
pursuant to
Section 2.01(d) will be delivered by the related Mortgage Loan
Seller to the
Trustee on the new national forms, in recordable form and completed
pursuant to
Revised Article IX of the UCC. The Trustee will submit such UCC
Financing
Statements for filing in the state of incorporation of the related
Mortgagor as
so indicated on the documents provided.
(c) None of the Trustee, the Master Servicer, the Special
Servicer
or any Custodian is under any duty or obligation to inspect, review
or examine
any of the documents, instruments, certificates or other papers
relating to the
Mortgage Loans delivered to it to determine that the same are
valid, legal,
effective, genuine, enforceable, in recordable form, sufficient or
appropriate
for the represented purpose or that they are other than what they
purport to be
on their face.
(d) The Trustee may establish a Special Reserve Account which
shall
be an Eligible Account, and the Trustee or its designee shall
deposit any amount
required to be deposited in a Special Reserve Account within one
Business Day of
receipt. The related Mortgage Loan Seller may direct the Trustee to
invest or
cause the investment of the funds deposited in the Special Reserve
Account in
Permitted Investments that bear interest or are sold at a discount
and that
mature, unless payable on demand, no later than the Business Day
prior to the
next P&I Advance Date. The Trustee shall act upon the written
instructions of
the Mortgage Loan Seller with respect to the investment of the
funds in the
Special Reserve Account in such Permitted Investments; provided
that in the
absence of appropriate and timely written instructions from the
related Mortgage
Loan Seller, the Trustee shall not have any obligation to invest or
direct the
investment funds in such Special Reserve Account. All income and
gain realized
from the investment of funds deposited in such Special Reserve
Account shall be
for the benefit of the related Mortgage Loan Seller and shall be
withdrawn by
the Trustee or its designees and remitted to the related Mortgage
Loan Seller on
each P&I Advance Date (net of any losses incurred), and the
related Mortgage
Loan Seller shall remit to the Trustee from the related Mortgage
Loan Seller's
own funds for deposit into such Special Reserve Account the amount
of any Net
Investment Loss (net of Net Investment Earnings) in respect of such
Permitted
Investments immediately upon realization of such Net Investment
Losses and
receipt of written notice thereof from the Trustee; provided that
the Mortgage
Loan Seller shall not be required to deposit any loss on an
investment of funds
in the Special Reserve Account if such loss is incurred solely as a
result of
the insolvency of the federal or state chartered depository
institution or trust
company that holds such Special Reserve Account; provided that such
depository
institution is not the same entity as such Mortgage Loan Seller.
The Special
Reserve Account shall be considered an "outside reserve fund"
within the meaning
of the REMIC Provisions, and such Special Reserve Account (or any
reimbursement
from REMIC I or REMIC II with respect thereto) will be beneficially
owned by the
Mortgage Loan Seller, who shall be taxable on all income, if any,
with respect
thereto.
<PAGE>
(e) With respect to exceptions related to clause (xii) of the
definition of "Mortgage File" and any cash or substitute letters of
credit held
by the Trustee in the Special Reserve Account from time to time,
if
circumstances arise in servicing the related Mortgage Loan such
that the Master
Servicer or Special Servicer, as the case may be, is entitled to
draw upon the
undelivered letter of credit, the Master Servicer or Special
Servicer, as the
case may be, shall present an Officer's Certificate to the Trustee
requesting
that the cash or substitute letter of credit held in the Special
Reserve
Account, be remitted or released, as the case may be, and the
Trustee shall
remit such cash or release such substitute letter of credit within
one (1)
Business Day of receipt of such Officer's Certificate. Upon release
of any
substitute letter of credit to the Master Servicer or Special
Servicer, the
Trustee shall no longer be responsible for such letter of
credit.
Section 2.03 Mortgage Loan Seller's Repurchase or Substitution
of
Mortgage Loans for Document Defects and Breaches of Representations
and
Warranties.
(a) If any party hereto discovers or receives notice that any
document or documents constituting a part of a Mortgage File
(including that
part relating to the [__________] Loan being held by the
[__________] Trustee)
has not been properly executed, is missing (beyond the time period
required for
its delivery hereunder), contains information that does not conform
in any
material respect with the corresponding information set forth in
the Mortgage
Loan Schedule, or does not appear to be regular on its face (each a
"Document
Defect"), or discovers or receives notice of a breach of any
representation or
warranty relating to any Mortgage Loan set forth in the applicable
Mortgage Loan
Purchase Agreement (a "Breach"), the party discovering such
Document Defect or
Breach shall give written notice (which notice, in respect of any
obligation of
the Trustee to provide notice of a Document Defect, shall be deemed
given by the
delivery of the certificate as required by Section 2.02(a)) to the
other parties
hereto, to the Majority Subordinate Certificateholder and to the
Rating Agencies
of such Document Defect or Breach. Promptly upon becoming aware of
any Document
Defect or Breach (including through such written notice provided by
any party
hereto or the Majority Subordinate Certificateholder as provided
above), if any
party hereto determines that such Document Defect or Breach
materially and
adversely affects the value of the affected Mortgage Loan, the
interest of the
Trust therein or the interests of any Certificateholder, such party
shall notify
the Master Servicer of such determination and promptly after
receipt of such
notice, the Master Servicer, or with respect to a Specially
Serviced Mortgage
Loan, the Special Servicer, shall request in writing (with a copy
to the other
parties hereto, the Majority Subordinate Certificateholder, the
Rating Agencies
and the Controlling Class Representative (if different from the
Majority
Subordinate Certificateholder)) that the applicable Mortgage Loan
Seller, not
later than [__] days from receipt of such written request (or, in
the case of a
Document Defect or Breach relating to a Mortgage Loan not being a
"qualified
mortgage" within the meaning of the REMIC Provisions, not later
than [__] days
after any party to this Agreement discovers such Document Defect or
Breach) (i)
cure such Document Defect or Breach, as the case may be, in
accordance with
Section 3(c) of the applicable Mortgage Loan Purchase Agreement,
(ii) repurchase
the affected Mortgage Loan in accordance with Section 3(c) of the
related
Mortgage Loan Purchase Agreement, or (iii) within two years of the
Closing Date,
substitute a Qualified Substitute Mortgage Loan for such affected
Mortgage Loan
and pay the Master Servicer for deposit into the Certificate
Account any
Substitution Shortfall Amount in connection therewith in accordance
with
Sections 3(c) and 3(d) of the applicable Mortgage Loan Purchase
Agreement;
provided, however, that if such Document Defect or Breach is
capable of being
cured, but not within such [__] day period, such Document Defect or
Breach does
not relate to the Mortgage Loan not being treated as a "qualified
mortgage"
within the meaning of the REMIC Provisions, and the applicable
Mortgage Loan
Seller has commenced and is diligently proceeding with the cure of
such Document
Defect or Breach within such [__] day period, the applicable
Mortgage Loan
Seller shall have an additional [__] days to complete such cure
(or, failing
such cure, to repurchase the related Mortgage Loan); provided,
further, with
respect to such additional [__] day period the applicable Mortgage
Loan Seller
shall have delivered an Officer's Certificate to the Trustee
setting forth what
actions the applicable Mortgage Loan Seller is pursuing in
connection with the
cure thereof and stating that the applicable Mortgage Loan Seller
anticipates
such Document Defect or Breach will be cured within the additional
[__] day
period; provided, further, that no Document Defect (other than with
respect to a
Mortgage Note, Mortgage, title insurance policy, Ground Lease, any
letter of
credit, franchise agreement or any comfort letter and comfort
letter transfer
documents (collectively, the "Material Core Documents")) shall be
considered to
materially and adversely affect the interests of any
Certificateholder, the
interest of the Trust Fund therein or the value of the related
Mortgage Loan
unless the document with respect to which the Document Defect
exists is required
in connection with an imminent enforcement of the mortgagee's
rights or remedies
under the related Mortgage Loan, defending any claim asserted by
any borrower or
third party with respect to the Mortgage Loan, establishing the
validity or
priority of any lien on any collateral securing the Mortgage Loan
or for any
immediate significant servicing obligations; provided, further,
with respect to
Document Defects which materially and adversely affect the interest
of any
Certificateholder, the interests of the Trust therein or the value
of the
related Mortgage Loan, other than with respect to Document Defects
relating to
the Material Core Documents, any applicable cure period following
the initial
[__] day cure period may be extended by the Master Servicer or the
Special
Servicer if the document involved is not needed imminently. Such
extension will
end upon [__] days notice of such need as reasonably determined by
the Master
Servicer or Special Servicer (with a possible [__] day extension if
the Master
Servicer or Special Servicer agrees that the applicable Mortgage
Loan Seller is
diligently pursuing a cure). Pursuant to the related Mortgage Loan
Purchase
Agreement, the related Mortgage Loan Seller shall cure all Document
Defects
which materially and adversely affect the interests of any
Certificateholder,
the interests of the Trust Fund therein or the value of the related
Mortgage
Loan, regardless of the document involved, no later than two years
following the
Closing Date; provided, however, that the initial [__] day cure
period
referenced above shall not be reduced. For a period of two years
from the
Closing Date, so long as there remains any Mortgage File as to
which there is
any uncured Document Defect and so long as the applicable Mortgage
Loan Seller
shall provide the Officer's Certificate pursuant to Section 3(c) of
the
applicable Mortgage Loan Purchase Agreement, the Trustee shall on a
quarterly
basis prepare and deliver to the other parties a written report as
to the status
of such uncured Document Defects as provided in this Section 2.03.
If the
affected Mortgage Loan is to be repurchased or substituted, the
Master Servicer
shall designate the Certificate Account as the account to which
funds in the
amount of the Purchase Price or the Substitution Shortfall Amount,
as
applicable, are to be wired. Any such repurchase or substitution of
a Mortgage
Loan shall be on a whole loan, servicing released basis.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described in the immediately
preceding paragraph,
(ii) such Mortgage Loan is a Crossed Loan, and (iii) the applicable
Document
Defect or Breach does not constitute a Document Defect or Breach,
as the case
may be, as to any other Crossed Loan in such Crossed Group (without
regard to
this paragraph), then the applicable Document Defect or Breach, as
the case may
be, will be deemed to constitute a Document Defect or Breach, as
the case may
be, as to any other Crossed Loan in the Crossed Group for purposes
of this
paragraph, and the related Mortgage Loan Seller will be required to
repurchase
or substitute for such other Crossed Loan(s) in the related Crossed
Group as
provided in the immediately preceding paragraph unless such other
Crossed Loans
satisfy the Crossed Loan Repurchase Criteria and satisfy all other
criteria for
substitution and repurchase of Mortgage Loans set forth herein. In
the event
that the remaining Crossed Loans in such Crossed Group satisfy
the
aforementioned criteria, the Mortgage Loan Seller may elect either
to repurchase
or substitute for only the affected Crossed Loan as to which the
related Breach
or Document Defect exists or to repurchase or substitute for all of
the Crossed
Loans in the related Crossed Group. Any reserve or other cash
collateral or
letters of credit securing the Crossed Loans shall be allocated
between such
Mortgage Loans in accordance with the Mortgage Loan documents. All
other terms
of the Mortgage Loans shall remain in full force and effect without
any
modification thereof.
With respect to any Crossed Loan, to the extent that the
applicable
Mortgage Loan Seller is required to repurchase or substitute for
such Mortgage
Loan in the manner prescribed in this Section 2.03(a) while the
Trustee
continues to hold any other Crossed Loans in the related Crossed
Group, the
applicable Mortgage Loan Seller and the Depositor will, as set
forth in the
related Mortgage Loan Purchase Agreement (any expenses incurred by
the Trustee
or the Master Servicer in connection with any modification or
accommodation
referred to in such Mortgage Loan Purchase Agreement (including but
not limited
to reasonable attorney fees) shall be paid by the related Mortgage
Loan Seller),
forbear from enforcing any remedies against the other's Primary
Collateral but
each will be permitted to exercise remedies against the Primary
Collateral
securing its respective Mortgage Loans, including with respect to
the Trustee,
the Primary Collateral securing Mortgage Loans still held by the
Trustee.
(b) In
connection with any repurchase or substitution of one or more
Mortgage Loans contemplated by this Section 2.03, upon receipt of a
Request for
Release (in the form of Exhibit D-1 attached hereto) of a Servicing
Officer of
the Master Servicer certifying as to the receipt of the applicable
Purchase
Price(s) in the Certificate Account (in the case of any such
repurchase) or the
receipt of the applicable Substitution Shortfall Amount(s) in the
Certificate
Account and upon the delivery of the Mortgage File(s) and the
Servicing File(s)
for the related Qualified Substitute Mortgage Loan(s) to the
Custodian and the
Master Servicer, respectively (in the case of any such
substitution), (i) the
Trustee shall execute and deliver such endorsements and assignments
as are
provided to it, in each case without recourse, representation or
warranty, as
shall be necessary to vest in the applicable Mortgage Loan Seller
the legal and
beneficial ownership of each repurchased Mortgage Loan or deleted
Mortgage Loan,
as applicable, being released pursuant to this Section 2.03, and
(ii) the
Trustee, the Custodian, the Master Servicer, and the Special
Servicer shall each
tender to the applicable Mortgage Loan Seller, upon delivery to
each of them of
a receipt executed by the applicable Mortgage Loan Seller, all
portions of the
Mortgage File and other documents pertaining to each such Mortgage
Loan
possessed by it and the Master Servicer and the Special Servicer
shall release
to the applicable Mortgage Loan Seller any Escrow Payments and
Reserve Funds
held by it in respect of such repurchased or deleted Mortgage Loan;
provided
that such tender by the Trustee or the Custodian shall be
conditioned upon its
receipt from the Master Servicer or the Special Servicer of a
Request for
Release. Thereafter, the Trustee, the Custodian, the Master
Servicer and the
Special Servicer shall have no further responsibility with regard
to the related
repurchased Mortgage Loan(s) or deleted Mortgage Loan(s), as
applicable, and the
related Mortgage File(s) and Servicing File(s). The Master Servicer
shall, and
is hereby authorized and empowered by the Trustee to, prepare,
execute and
deliver in its own name, on behalf of the Certificateholders and
the Trustee or
any of them, the endorsements and assignments contemplated by this
Section 2.03,
and the Trustee shall execute any powers of attorney that are
prepared and
delivered to the Trustee by the Master Servicer and are necessary
to permit the
Master Servicer to do so. The Master Servicer shall indemnify the
Trustee for
any reasonable costs, fees, liabilities and expenses incurred by
the Trustee in
connection with the negligent or willful misuse by the Master
Servicer of such
powers of attorney. At the time a substitution is made, the related
Mortgage
Loan Purchase Agreement will provide that the Mortgage Loan Seller
shall deliver
the related Mortgage File to the Trustee and certify that the
substitute
Mortgage Loan is a Qualified Substitute Mortgage Loan.
(c) No substitution of a Qualified Substitute Mortgage Loan or
Loans
may be made in any calendar month after the Determination Date for
such month.
Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan
after the related date of substitution shall be part of REMIC I.
Periodic
Payments due with respect to any Qualified Substitute Mortgage Loan
on or prior
to the related date of substitution shall not be part of the Trust
Fund or REMIC
I and will (to the extent received by the Master Servicer) be
remitted by the
Master Servicer to the applicable Mortgage Loan Seller promptly
following
receipt.
(d) Each Mortgage Loan Purchase Agreement provides the sole
remedies
available to the Certificateholders, or the Trustee on behalf of
the
Certificateholders, respecting any Document Defect or Breach with
respect to the
Mortgage Loans purchased by the Depositor thereunder.
(e) The Trustee with the cooperation of the Special Servicer (in
the
case of Specially Serviced Mortgage Loans) shall, for the benefit
of the
Certificateholders, enforce the obligations of the Mortgage Loan
Sellers under
Section 3 of the applicable Mortgage Loan Purchase Agreement.
(f) Notwithstanding the foregoing, if there exists a Breach
relating
to whether or not the Mortgage Loan documents or any particular
Mortgage Loan
document requires the related Mortgagor to bear the costs and
expenses
associated with any particular action or matter under such Mortgage
Loan
document(s) with respect to matters described in Representations 23
and 43 of
the applicable Mortgage Loan P
