Exhibit 4.1
CWCapital Commercial Funding Corp.,
as Depositor
and
Wachovia Bank, National Association,
as Master Servicer
and
CWCapital Asset Management LLC,
as Special Servicer
and
Wells Fargo Bank, N.A.,
as Trustee
POOLING AND SERVICING AGREEMENT
Dated as of December 1, 2006
----------------------
$2,531,161,488
COBALT CMBS Commercial Mortgage Trust 2006-C1,
Commercial Mortgage Pass-Through Certificates,
Series 2006-C1
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined
Terms................................................
Section 1.02 General
Interpretive Principles..............................
Section 1.03 Certain
Adjustments to the Principal Distributions on the
Certificates................................................
Section 1.04 Certain
Calculations Relating to Mortgage Loans..............
ARTICLE II
CONVEYANCE
OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Creation
of Trust; Conveyance of Mortgage Loans and Loan
REMIC Interests.............................................
Section 2.02
Acceptance of Trust Fund by Trustee..........................
Section 2.03
Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties..................
Section 2.04
Representations, Warranties and Covenants of the
Depositor...................................................
Section 2.05 Execution of Certificates; Issuance of
Uncertificated
Lower-Tier Interests........................................
Section 2.06
Acceptance of Grantor Trust Assets by Trustee; Interest
of the Class P Certificates and the Class IO
Certificates................................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01
Administration of the Mortgage Loans.........................
Section 3.02
Collection of Loan Payments..................................
Section 3.03
Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts........................
Section 3.04 Pool
Custodial Account, Defeasance Deposit Account,
Distribution Account, Class AMP-E Interest Reserve
Account, Interest Reserve Account and Excess Liquidation
Proceeds Account............................................
Section 3.04A Loan Combination Custodial
Account...........................
Section 3.04B Class AMP-E Custodial
Account................................
Section 3.05 Permitted
Withdrawals From the Pool Custodial Account,
the Class AMP-E Custodial Account, the Distribution
Account, the Interest Reserve Account, the Class AMP-E
Interest Reserve Account and the Excess Liquidation
Proceeds Account............................................
Section 3.05A Permitted Withdrawals From the Loan Combination
Custodial
Account.....................................................
Section 3.06
Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account, the
Custodial
Accounts and the REO Accounts.....................
Section 3.07
Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance..............
Section 3.08
Enforcement of Due-on-Sale and Due on Encumbrance
Provisions..................................................
Section 3.09
Realization Upon Defaulted Loans; Required Appraisals;
Appraisal Reduction Calculation.............................
Section 3.10 Trustee
and Custodian to Cooperate; Release of Mortgage
Files.......................................................
Section 3.11 Servicing
Compensation; Payment of Expenses..................
Section 3.12 Certain
Matters Regarding Servicing Advances.................
Section 3.13 Property
Inspections; Collection of Financial Statements;
Delivery of Certain Reports.................................
Section 3.14 Delivery
of Certain Reports to the Companion Loan
Noteholders.................................................
Section 3.15 Statements to the Companion Loan
Noteholders..................
Section 3.16 Access to Certain
Information.................................
Section 3.17 Title to REO Property; REO
Accounts...........................
Section 3.18 Management of Serviced REO
Property...........................
Section 3.19 Sale of Mortgage Loans and REO
Properties.....................
Section 3.20 Additional Obligations of the Master Servicer;
Obligations to
Notify Ground Lessors; the Special
Servicer's Right to Request the Master Servicer to Make
Servicing Advances..........................................
Section 3.21
Modifications, Waivers, Amendments and Consents;
Defeasance..................................................
Section 3.22 Transfer
of Servicing Between Master Servicer and Special
Servicer; Record Keeping....................................
Section 3.23
Sub-Servicing Agreements.....................................
Section 3.24
Representations and Warranties of the Master Servicer........
Section 3.25
Representations and Warranties of the Special Servicer.......
Section 3.26 Certain
Matters Regarding the Purchase of the Loan
Combination Trust Mortgage Loans............................
Section 3.27
Application of Default Charges...............................
Section 3.28
Limitations on and Authorizations of the Master Servicer
and Special Servicer with Respect to Specific Mortgage
Loans.......................................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
Section 4.01
Distributions................................................
Section 4.02
Statements to Certificateholders; CMSA Loan Periodic
Update File.................................................
Section 4.03 P&I
Advances.................................................
Section 4.03A. P&I Advances on the Loan Combination Trust
Mortgage
Loans and the Ala Moana Portfolio Loan Combination..........
Section 4.04
Allocation of Realized Losses and Additional Trust Fund
Expenses....................................................
Section 4.05 Various
Reinstatement Amounts................................
Section 4.06
Calculations.................................................
Section 4.07 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 Continued
Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of
Depositor, 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, Trustee and Companion Loan
Noteholders in Respect of the 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
Termination and Designation of Special Servicer by the
Controlling Class Representative............................
Section 6.10 Master
Servicer or Special Servicer as Owner of a
Certificate.................................................
Section 6.11 Certain
Powers of the Controlling Class Representative.......
ARTICLE VII
DEFAULT
Section 7.01 Events of
Default............................................
Section 7.02 Trustee
to Act; Appointment of Successor.....................
Section 7.03
Notification to Certificateholders...........................
Section 7.04 Waiver of
Events of Default..................................
Section 7.05
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 and by
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
Appointment of Tax Administrators............................
Section 8.14 Access to
Certain Information................................
Section 8.15
[Reserved.]..................................................
Section 8.16
Representations and Warranties of Trustee....................
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.........................................
ARTICLE XI
EXCHANGE ACT REPORTING AND REGULATION AB COMPLIANCE
Section 11.01 Intent of the Parties;
Reasonableness........................
Section 11.02 Succession;
Subcontractors...................................
Section 11.03 Filing
Obligations...........................................
Section 11.04 Form 10-D
Filings............................................
Section 11.05 Form 10-K
Filings............................................
Section 11.06 Sarbanes-Oxley
Certification.................................
Section 11.07 Form 8-K
Filings.............................................
Section 11.08 Form 15
Filing...............................................
Section 11.09 Annual Compliance
Statements.................................
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing
Criteria....................................................
Section 11.11 Annual Independent Public Accountants' Servicing
Report......
Section 11.12
Indemnification..............................................
Section 11.13
Amendments...................................................
Section 11.14 Regulation AB
Notices........................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01
Amendment....................................................
Section 12.02 Recordation of Agreement;
Counterparts.......................
Section 12.03 Limitation on Rights of Certificateholders and
Companion
Loan Noteholders............................................
Section 12.04 Governing Law; Consent to
Jurisdiction.......................
Section 12.05
Notices......................................................
Section 12.06 Severability of
Provisions...................................
Section 12.07 Grant of a Security
Interest.................................
Section 12.08 Streit
Act...................................................
Section 12.09 Successors and Assigns;
Beneficiaries........................
Section 12.10 Article and Section
Headings.................................
Section 12.11 Notices to Rating
Agencies...................................
Section 12.12 Global
Opinions..............................................
Section 12.13 Complete
Agreement...........................................
<PAGE>
SCHEDULES AND EXHIBITS
Schedule No. Schedule
Description
I
Mortgage Loan Schedule
II
Schedule of Exceptions to Mortgage File Delivery
III
Environmentally Insured Mortgage Loans
IV
[Reserved]
V
Schedule of Initial Directing Holder for Each Loan Combination
VI
Supplemental Servicer Schedule
VII
Primary
Serviced Mortgage Loans
VIII
[Reserved]
Exhibit No.
Exhibit
Description
A-1
Form of
Class [A-1] [A-2] [A-1A] [A-3] [A-4] Certificate
A-2
Form of
Class IO Certificate
A-3
Form of
Class [A-M] [A-J] [B] [C] [D] Certificate
A-4
Form of
Class [E] [F] [G] [H] [AMP-E1] [AMP-E2] Certificate
A-5
[Reserved]
A-6
Form of
Class [J] [K] [L] [M] [N] [O] [P] Certificate
A-7
Form of
Class [R-I] [R-II] Certificate
B
Form
of Distribution Date Statement
C
Form
of Custodial Certification
D-1
Form of
Master Servicer Request for Release
D-2
Form of
Special Servicer Request for Release
E
Form
of Mortgage Loan Payoff Notification Report
F-1
Form of
Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A
Form I of
Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B
Form II of
Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C
Form of
Transferee Certificate for Transfers of Interests in Rule
144A Global Certificates
F-2D
Form of
Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
G
Form
I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
H-1
Form of
Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2
Form of
Transferor Certificate regarding Residual Interest
Certificates
I-1
Form of
Notice and Acknowledgment
I-2
Form of
Acknowledgment of Proposed Special Servicer
J
Reserved
K
Sub-Servicers in respect of which Sub-Servicing Agreements are
in
effect or being negotiated as of the Closing Date
L
Form
of Defeasance Certification
M
Form
of Sarbanes-Oxley Certification
N-1
Form of
Certification to be Provided to Depositor by the Trustee
N-2
Form of
Certification to be Provided to Depositor by the Master
Servicer
N-3
Form of
Certification to be Provided to Depositor by the Special
Servicer
O
Servicing Criteria to be Addressed in Assessment of Compliance
P
Additional Form 10-D Disclosure
Q
Additional Form 10-K Disclosure
R
Form
8-K Disclosure
S
Form
of Additional Disclosure Information
T
Servicing and Sub-Servicing Agreements
U
Form
Certification to be Provided with Form 10-K
V
Tenants-In-Common Transfer Compliance
W
Form
of Officer's Certificate - Tenants in Common
<PAGE>
This Pooling and Servicing Agreement (this "Agreement") is dated
and
effective as of December 1, 2006, among CWCAPITAL COMMERCIAL
FUNDING CORP., as
Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer,
CWCAPITAL
ASSET MANAGEMENT LLC, as Special Servicer, and Wells Fargo Bank,
N.A., as
Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be
issued hereunder in multiple Classes and which in the aggregate
will evidence
the entire beneficial ownership interest in the Trust Fund.
CERTIFICATES
Original Class
Approx.
Original Class
Initial
Principal Balance
Class
Pass-Through Rate (or Notional
Amount) Original
Rating
Designation
(per annum)
at Initial Issuance
S&P/Fitch(1)
---------------
-----------------
--------------------
---------------
Class A-1
5.043%
$47,317,000
AAA/AAA
Class A-2
5.174%
$358,732,000
AAA/AAA
Class A-AB
5.223%
$138,924,000
AAA/AAA
Class A-3
5.311%
$102,255,000
AAA/AAA
Class A-4
5.223%
$723,677,000
AAA/AAA
Class A-1A
5.199%
$400,908,000
AAA/AAA
Class IO
(2)
$2,531,161,488(3)
AAA/AAA
Class A-M
5.254%
$253,116,000
AAA/AAA
Class A-J
5.289%
$208,821,000
AAA/AAA
Class B
5.359%
$50,623,000
AA/AA
Class C
5.398%
$28,475,000
AA-/AA-
Class D
5.438%
$34,804,000
A/A
Class E
5.497%
$22,147,000
A-/A-
Class F
5.665%
$28,476,000
BBB+/BBB+
Class G
5.763%
$25,312,000
BBB/BBB
Class H
5.961%
$34,803,000
BBB-/BBB-
Class J
4.979%
$6,328,000
BB+/BB+
Class K
4.979%
$9,492,000
BB/BB
Class L
4.979%
$9,492,000
BB-/BB-
Class M
4.979%
$3,164,000
B+/B+
Class N
4.979%
$6,328,000
B/B
Class O
4.979%
$6,328,000
B-/B-
Class P
4.979%
$31,639,488
NR/NR
Class AMP-E1(4)
5.501%
$18,000,000
NR/BB
Class AMP-E2(4)
5.501%
$7,000,000
NR/BB
Class R-I
N/A(5)
N/A(5)
NR/NR
Class R-II
N/A(5)
N/A(5)
NR/NR
--------------------------
(1) "NR"
indicates that the Class of Certificates has not been rated by
the
applicable
Rating Agency.
(2) The
Pass-Through Rate for the Class IO Certificates will be a
variable
rate per
annum as set forth herein.
(3) The Class IO
Certificates will not have a Class Principal Balance and will
not
entitle their Holders to receive distributions of principal. The
Class
IO
Certificates will have a Notional Amount as set forth herein.
(4) The Class
AMP-E1 Certificates, which have an aggregate Class Principal
Balance of
$18,000,000, and the Class AMP-E2 Certificates, which have an
aggregate
Class Principal Balance of $7,000,000, represent an interest in
a
subordinate note secured by the Ala Moana Portfolio Loan
Combination
properties. The Ala
Moana Portfolio Loan Combination is evidenced by
multiple
notes, consisting of multiple senior notes that pay pari passu
and
multiple subordinate notes. One of the senior notes and one of
the
subordinate notes are included as assets of the Trust, but only the
senior
note is
included among the Pooled Mortgage Loans. All of the Mortgage
Loans
included in the Trust, including the senior note secured by the
Ala
Moana
Portfolio Loan Combination properties, but not the subordinate
note
secured by
the Ala Moana Portfolio Loan Combination properties, are pooled
for
purposes of distributions to the Certificateholders (other than
the
Class
AMP-E Certificates).
(5) The Class
R-I Certificates and Class R-II Certificates do not have a
Class
Principal
Balance or Notional Amount, do not bear interest and will not
be
entitled
to distributions of Net Prepayment Consideration. Any Available
Distribution Amount remaining in the Lower-Tier Distribution
Account after
distributing the Lower-Tier Distribution Amount and Net
Prepayment
Consideration shall be distributed to the Holders of the Class
R-I
Certificates (but only to the extent of the Available Distribution
Amount
for such
Distribution Date, if any, remaining in the Lower-Tier
Distribution Account). Any Available Distribution Amount remaining
in the
Upper-Tier
Distribution Account, after all required distributions under
this
Agreement have been made to each other Class of Certificates, will
be
distributed to the Holders of the Class R-II Certificates.
As provided herein, the Trustee will elect to treat each of the
350
Long Beach Mortgage Loan and The Shoppes on Shugart Shopping Center
Mortgage
Loan (each a "Loan REMIC Loan") (and certain other related assets)
as assets of
a separate REMIC (each, a "Loan REMIC"). Each Loan REMIC has issued
(i) one
uncertificated Class of regular interest (each, a "Loan REMIC
Regular Interest")
to be held by the Lower-Tier REMIC (as defined below) and (ii)
one
uncertificated Class of residual interest (each, a "Loan REMIC
Residual
Interest"), which will be represented by the Class R-I
Certificates.
As provided herein, the Trustee will elect to treat the
segregated
pool of assets consisting of all of the other Mortgage Loans, the
Loan REMIC
Regular Interests and certain other related assets subject to this
Agreement as
a REMIC for federal income tax purposes, and such segregated pool
of assets will
be designated as the "Lower-Tier REMIC." The Class R-I Certificates
will
represent the sole class of "residual interests" in the Lower-Tier
REMIC for
purposes of the REMIC Provisions under federal income tax law.
As provided herein, the Trustee will elect to treat the
segregated
pool of assets consisting of the Uncertificated Lower-Tier
Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets
will be
designated as the "Upper-Tier REMIC." The Class R-II Certificates
will evidence
the sole class of "residual interests" in the Upper-Tier REMIC for
purposes of
the REMIC Provisions under federal income tax law. For federal
income tax
purposes, each Class of the Regular Interest Certificates (other
than the Class
IO Grantor Trust Interest and the right of the Class P Certificates
to receive
Post-ARD Additional Interest) will be designated as a separate
"regular
interest" in the Upper-Tier REMIC for purposes of the REMIC
Provisions under
federal income tax law.
The following table sets forth the Class or Component
designation,
the corresponding Uncertificated Lower-Tier Interest (the
"Corresponding
Uncertificated Lower-Tier Interest"), the corresponding components
of the Class
IO Certificates (the "Corresponding Components"), if any, and the
Original Class
Principal Balance for each Class of Principal Balance Certificates
(the
"Corresponding Certificates").
Corresponding Original
Corresponding
Original Class
Uncertificated Lower-Tier
Component of
Corresponding
Principal
Lower-Tier
Principal
Class IO
Certificates
Balance
Interests(1)
Amount
Certificates(1)
--------------- --------------- ---------------- --------------
----------------
Class A-1
$47,317,000
LA-1
$47,317,000
IO-A-1
Class A-2
$358,732,000
LA-2
$358,732,000
IO-A-2
Class A-AB
$138,924,000
LA-AB
$138,924,000
IO-A-AB
Class A-3
$102,255,000
LA-3
$102,255,000
IO-A-3
Class A-4
$723,677,000
LA-4
$723,677,000
IO-A-4
Class A-1A
$400,908,000
LA-1A
$400,908,000
IO-A-1A
Class A-M
$253,116,000
LA-M
$253,116,000
IO-A-M
Class A-J
$208,821,000
LA-J
$208,821,000
IO-A-J
Class B
$50,623,000
LB
$50,623,000
IO-B
Class C
$28,475,000
LC
$28,475,000
IO-C
Class D
$34,804,000
LD
$34,804,000
IO-D
Class E
$22,147,000
LE
$22,147,000
IO-E
Class F
$28,476,000
LF
$28,476,000
IO-F
Class G
$25,312,000
LG
$25,312,000
IO-G
Class H
$34,803,000
LH
$34,803,000
IO-H
Class J
$6,328,000
LJ
$6,328,00
IO-J
Class K
$9,492,000
LK
$9,492,000
IO-K
Class L
$9,492,000
LL
$9,492,000
IO-L
Class M
$3,164,000
LM
$3,164,000
IO-M
Class N
$6,328,000
LN
$6,328,000
IO-N
Class O
$6,328,000
LO
$6,328,000
IO-O
Class P
$31,639,488
LP
$31,639,488
IO-P
Class AMP-E1
$18,000,000
LAMP-E1
$18,000,00
N/A
Class AMP-E2
$7,000,000
LAMP-E2
$7,000,000
N/A
-------------
(1) The
Uncertificated Lower-Tier Interest and the Component of the Class
IO
Certificates that corresponds to any particular Class of Principal
Balance
Certificates also correspond to each other and, accordingly,
constitute
the
"Corresponding Uncertificated Lower-Tier Interest" and the
"Corresponding Component," respectively, with respect to each
other. Each
Class IO
Certificate represents ownership of a regular interest in the
Upper-Tier
REMIC and will, in addition, be entitled to a portion of the
Grantor
Trust representing The Shoppes on Shugart Shopping Center
Mortgage
Loan Yield
Supplement Amounts (which will not be a part of any REMIC).
The initial aggregate principal balance of the Uncertificated
Lower-Tier Interests will be $2,531,161,488.
The portion of the Trust Fund consisting of the Post-ARD
Additional
Interest and The Shoppes on Shugart Shopping Center Mortgage Loan
Yield
Supplement Amount and related amounts shall be treated as a grantor
trust for
federal income tax purposes (the "Grantor Trust"). As provided
herein, the
Trustee shall take all actions necessary to ensure that the portion
of the Trust
Fund consisting of the Grantor Trust Assets maintains its status as
a "grantor
trust" under federal income tax law and not be treated as part of
the Lower Tier
REMIC or the Upper Tier REMIC. The Class P Certificates (in
addition to
representing a regular interest in the Upper-Tier REMIC) represent
undivided
beneficial interests in the portion of the Grantor Trust
representing the
Post-ARD Additional Interest as described herein. The Class IO
Certificates
represent undivided beneficial interests in the portion of the
Grantor Trust
representing The Shoppes on Shugart Shopping Center Mortgage Loan
Yield
Supplement Amount as described herein.
There are four Mortgage Loans included in the Trust Fund (as
identified in the table below) that are each part of a split loan
structure, and
are each secured by the same Mortgage that also secures another
mortgage loan or
loans in that split loan structure.
Each split loan structure, including all of the related notes
that
are secured by the same Mortgage, is referred to herein as a "Loan
Combination."
Each Loan Combination consists of (1) one or more "Loan Combination
Trust
Mortgage Loans," which is the portion of the Loan Combination that
is included
as an asset of the Trust Fund and (2) one or more "Companion
Loans," which is
the portion of the Loan Combination that is not included as an
asset of the
Trust Fund. Each Companion Loan may be classified as either (1) a
"Pari Passu
Companion Loan," which is a Companion Loan that is pari passu in
right of
payment with the related Loan Combination Trust Mortgage Loan in
the same Loan
Combination or (2) a "Subordinate Companion Loan," which is a
Companion Loan
that is subordinate in right of payment to the related Loan
Combination Trust
Mortgage Loan in the same Loan Combination. A Loan Combination may
contain both
Pari Passu Companion Loans and Subordinate Companion Loans. The
term "Mortgage
Loan" as used in this Agreement will include the Loan Combination
Trust Mortgage
Loans.
The following table identifies the Loan Combinations and their
related Loan Combination Trust Mortgage Loans and Companion
Loans:
<TABLE>
<CAPTION>
Junior
Aggregate
Companion/
Controlling
Pooled
Companion/Non-Poole Non-Pooled
Companion
Pooling &
Mortgage
Mortgage
Trust Note
Pari Passu
Servicing
Mortgage Loan
Loan Balance Loan
Balance
Balance
Loan Balance
Agreement(1)
------------------------- ------------ -------------------
---------------
----------------
------------
<S>
<C>
<C>
<C>
<C>
<C>
Ala Moana Portfolio
200,000,000
1,300,000,000
$300,000,000(1)
1,000,000,000(1)
CD 2006-CD3
ShopKo Portfolio
85,994,625
457,013,829
N/A
457,013,829(3) CGCMT
2006-C4
311 South Wacker
85,400,000
158,600,000
N/A
158,600,000
WBCMT
2006-C28
Fortress/Ryan's Portfolio 61,985,000
64,515,000
N/A
64,515,000
COMM
2006-C8
<CAPTION>
Initial
Initial
Master
Special
Mortgage Loan
Servicer(2)
Servicer(3)
------------------------- ----------- -----------
<S>
<C>
<C>
Ala Moana Portfolio
Wachovia
JER
ShopKo Portfolio
Midland
JER
311 South Wacker
Wachovia
CWCAM
Fortress/Ryan's Portfolio Midland
LNR
</TABLE>
-----------------
(1) Comprised of
14 subordinate mortgage loans, including the Ala Moana
Portfolio
Non-Pooled Trust Loan with an unpaid principal balance as of
the
cut-off
date of $25,000,000.
(2) Comprised of
7 non-trust Pari-Passu Companion Loans.
(3) Comprised of
five non-trust Pari Passu Companion Loans, two of which have
loan
balances of $100,000,000 and three of which have loan balances
of
$86,400,000.
Ala Moana Portfolio. The Loan Combination secured by a Mortgage
on
the property known as Ala Moana Portfolio (the "Ala Moana Portfolio
Loan
Combination"), consists of twenty-two Loans:
(a) one Loan Combination Trust Mortgage Loan in the outstanding
principal amount of $200,000,000 as of the date hereof (the "Ala
Moana Portfolio
Pooled Trust Loan");
(b) seven Pari Passu Companion Loans in the outstanding
principal
amount of $1,000,000,000 as of the date hereof (the "Ala Moana
Portfolio Pari
Passu Companion Loans" and, together with the Ala Moana Portfolio
Pooled Trust
Loan, the "Ala Moana Portfolio Senior Loans");
(c) one Loan Combination Trust Mortgage Loan in the outstanding
principal amount of $25,000,000 as of the date hereof (the "Ala
Moana Portfolio
Non-Pooled Trust Loan" and, together with the Ala Moana Portfolio
Pooled Trust
Loan, the "Ala Moana Portfolio Trust Loans") that is subordinate in
right of
payment to the Ala Moana Senior Loans; and
(d) thirteen Subordinate Companion Loans in the outstanding
principal amount of $300,000,000 as of the date hereof (the "Ala
Moana Portfolio
Subordinate Companion Loans" and, together with the Ala Moana
Portfolio
Non-Pooled Trust Loan, the "Ala Moana Portfolio Subordinate
Loans").
ShopKo Portfolio. The Loan Combination secured by a Mortgage on
the
property known as ShopKo Portfolio (the "ShopKo Portfolio Loan
Combination"),
consists of six Loans:
(a) one Loan Combination Trust Mortgage Loan in the outstanding
principal amount of $85,994,625 as of the date hereof (the "ShopKo
Portfolio
Trust Loan"); and
(b) five Pari Passu Companion Loans in the outstanding
principal
amount of $457,013,829 as of the date hereof (the "ShopKo Portfolio
Pari Passu
Companion Loans").
311 South Wacker. The Loan Combination secured by a Mortgage on
the
property known as 311 South Wacker (the "311 South Wacker Loan
Combination"),
consists of two Loans:
(a) one Loan Combination Trust Mortgage Loan in the outstanding
principal amount of $85,400,000 as of the date hereof (the "311
South Wacker
Trust Loan"); and
(b) one Pari Passu Companion Loan in the outstanding principal
amount of $158,600,000 as of the date hereof (the "311 South Wacker
Pari Passu
Companion Loan").
Fortress/Ryan's Portfolio. The Loan Combination secured by a
Mortgage on the property known as Fortress/Ryan's Portfolio
(the
"Fortress/Ryan's Portfolio Loan Combination"), consists of two
Loans:
(a) one Loan Combination Trust Mortgage Loan in the outstanding
principal amount of $61,985,000 as of the date hereof (the
"Fortress/Ryan's
Portfolio Trust Loan"); and
(b) one Pari Passu Companion Loan in the outstanding principal
amount of $64,515,000 as of the date hereof (the "Fortress/Ryan's
Portfolio Pari
Passu Companion Loan").
The relative rights of each holder of a Loan Combination Trust
Mortgage Loan and the related Companion Loans are set forth in a
co-lender or
other similar agreement (each a "Co-Lender Agreement") among the
holders of each
of the Loans in the Loan Combination. Pursuant to each Co-Lender
Agreement, the
Loan Combinations are to be serviced and administered in accordance
with an
applicable pooling and servicing agreement (each, a "Lead PSA")
with respect to
the Ala Moana Portfolio Loan Combination, the ShopKo Portfolio Loan
Combination,
the 311 South Wacker Loan Combination and the Fortress/Ryan's
Portfolio Loan
Combination (the "Non-Serviced Loan Combinations"), by an
applicable master
servicer and special servicer under the related Lead PSA.
The Ala Moana Portfolio Loan Combination, including the Ala
Moana
Portfolio Trust Loans, will be serviced and administered in
accordance with the
pooling and servicing agreement (the "CD 2006-CD3 PSA") dated
October 1, 2006,
by and among Deutsche Mortgage & Asset Receiving Corporation,
as depositor (the
"CD 2006-CD3 Depositor"), Capmark Finance Inc., as master servicer,
Wachovia
Bank, National Association, as master servicer (the "CD 2006-CD3
Master
Servicer"), J.E. Robert Company Inc., as special servicer (the "CD
2006-CD3
Special Servicer") and LaSalle Bank National Association, as
trustee (the "CD
2006-CD3 Trustee"), pursuant to which CD 2006-CD3 Commercial
Mortgage Trust, CD
2006-CD3 Commercial Mortgage Pass-Through Certificates were
issued.
The ShopKo Portfolio Loan Combination, including the ShopKo
Portfolio Trust Loan, will be serviced and administered in
accordance with the
pooling and servicing agreement (the "CGCMT 2006-C4 PSA") dated
June 1, 2006, by
and among Citigroup Commercial Mortgage Securities, Inc., as
depositor (the
"CGCMT 2006-C4 Depositor"), Midland Loan Services, Inc., as master
servicer (the
"CGCMT 2006-C4 Master Servicer"), J.E. Robert Company Inc., as
special servicer
(the "CGCMT 2006-C4 Special Servicer") and LaSalle Bank National
Association, as
trustee (the "CGCMT 2006-C4 Trustee"), pursuant to which Citigroup
Commercial
Mortgage Trust 2006-C4, Commercial Mortgage Pass-Through
Certificates, Series
2006-C4 were issued.
The 311 South Wacker Loan Combination, including the 311 South
Wacker Trust Loan, will be serviced and administered in accordance
with the
pooling and servicing agreement (the "WBCMT 2006-C28 PSA") dated
May 1, 2006, by
and among Wachovia Commercial Mortgage Securities, Inc., as
depositor (the
"WBCMT 2006-C28 Depositor"), Wachovia Bank, National Association,
as master
servicer (the "WBCMT 2006-C28 Master Servicer"), CWCapital Asset
Management LLC,
as special servicer (the "WBCMT 2006-C28 Special Servicer"), Wells
Fargo Bank,
N.A., as trustee (the "WBCMT 2006-C28 Trustee") and U.S. Bank
National
Association, as co-trustee, pursuant to which Wachovia Bank
Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
2006-C28 were
issued.
The Fortress/Ryan's Portfolio Loan Combination, including the
Fortress/Ryan's Portfolio Trust Loan, will be serviced and
administered in
accordance with the pooling and servicing agreement (the "COMM
2006-C8 PSA") by
and among Deutsche Mortgage & Asset Receiving Corporation, as
depositor (the
"COMM 2006-C8 Depositor"), Midland Loan Services, Inc. (the "COMM
2006-C8 Master
Servicer"), LNR Partners, Inc., as special servicer (the "COMM
2006-C8 Special
Servicer") and LaSalle Bank National Association, as trustee (the
"COMM 2006-C8
Trustee"), pursuant to which COMM 2006-C8 Mortgage Trust, COMM
2006-C8
Commercial Mortgage Pass-Through Certificates were issued.
Capitalized terms used but not otherwise defined in this
Preliminary
Statement have the respective meanings assigned thereto in Section
1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the
Trustee hereby
agree, in each case, as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"311 South Wacker Loan Combination" shall have the meaning
assigned
thereto in the Preliminary Statement.
"311 South Wacker Pari Passu Companion Loan" shall have the
meaning
assigned thereto in the Preliminary Statement.
"311 South Wacker Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"350 Long Beach Mortgage Loan" shall mean the Mortgage Loan
secured
by the property known as 350 Long Beach.
"Affiliate"
means, 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.
"Acceptable Insurance Default" shall mean, with respect to any
Serviced Loan, any default under the related Loan documents
resulting from (a)
the exclusion of acts of terrorism from coverage under the related
all risk
casualty insurance policy maintained on the subject Mortgaged
Property and (b)
the related Mortgagor's failure to obtain insurance that
specifically covers
acts of terrorism, but only if the Special Servicer has determined,
in
accordance with the Servicing Standard, that either (i) such
insurance is not
available at commercially reasonable rates and the subject hazards
are not
commonly insured against by prudent owners of similar real
properties in similar
locales (but only by reference to such insurance that has been
obtained by such
owners at current market rates), or (ii) such insurance is not
available at any
rate. Subject to the Servicing Standard, in making any of the
determinations
required in subclause (i) or (ii) of this definition, the Special
Servicer shall
be entitled to rely on the opinion of an insurance consultant.
"Accrued Certificate Interest" shall mean the interest accrued
from
time to time with respect to any Class of Regular Interest
Certificates, the
amount of which interest shall equal: (a) in the case of any Class
of Principal
Balance Certificates for any Interest Accrual Period, one-twelfth
of the product
of (i) the Pass-Through Rate applicable to such Class of
Certificates for such
Interest Accrual Period, multiplied by (ii) the Class Principal
Balance of such
Class of Certificates outstanding immediately prior to the related
Distribution
Date; and (b) in the case of each Class of the Class IO
Certificates for any
Interest Accrual Period, the sum of the Accrued Component Interest
for all of
the Components of such Class for such Distribution Date.
"Accrued Component Interest" shall mean, with respect to each
Component of the Class IO Certificates for any Distribution Date,
one-twelfth of
the product of (i) the Class IO Strip Rate applicable to such
Component for such
Distribution Date, and (ii) the Component Notional Amount of such
Component
outstanding immediately prior to such Distribution Date.
"Acquisition Date" shall mean, 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
shall be 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" shall mean the accrual of interest calculated
on
the basis of the actual number of days elapsed during any interest
accrual
period in a year assumed to consist of 360 days.
"Additional Disclosure Notification" shall mean 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 S.
"Additional Form 10-D Disclosure" has the meaning set forth in
Section 11.04.
"Additional Form 10-K Disclosure" has the meaning set forth in
Section 11.05.
"Additional Information" shall have the meaning assigned thereto
in
Section 4.02(a).
"Additional Interest Rate" shall mean, with respect to any ARD
Loan
after its Anticipated Repayment Date, the incremental increase in
the Mortgage
Rate for such Mortgage Loan resulting from the passage of such
Anticipated
Repayment Date.
"Additional Principal Distribution Amount" shall mean, with
respect
to any Distribution Date, the aggregate of the Recovered Amounts
included in,
and added to the Principal Distribution Amount for such
Distribution Date for
purposes of calculating, the Adjusted Principal Distribution Amount
for such
Distribution Date, pursuant to Section 1.03(c).
"Additional Servicer" means each Affiliate of the Master
Servicer
that Services any of the Mortgage Loans and each Person who is not
an Affiliate
of the Master Servicer, other than the Special Servicer or the
Trustee, who
Services 10% or more of the Mortgage Loans by unpaid balance
calculated in
accordance with the provisions of Regulation AB.
"Additional Trust Fund Expense" shall mean any expense incurred
with
respect to the Trust Fund (excluding any Unliquidated Advance) and
not otherwise
included in the calculation of a Realized Loss that would result in
the Holders
of Regular Interest Certificates receiving less than the full
amount of
principal and/or Distributable Certificate Interest to which they
are entitled
on any Distribution Date. Amounts paid as Additional Trust Fund
Expenses shall
be paid out of funds on deposit in the Custodial Account or the
Distribution
Account.
"Adjusted Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to the Principal Distribution
Amount for such
Distribution Date, plus all amounts added to such Principal
Distribution Amount
pursuant to Section 1.03(c) for such Distribution Date, minus all
amounts
subtracted from such Principal Distribution Amount pursuant to
Section 1.03(b)
for such Distribution Date.
"Administrative Cost Rate" shall mean, with respect to each
Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto), the
rate per
annum specified as the "Administrative Cost Rate" on the Mortgage
Loan Schedule,
which, for each such other Mortgage Loan (or successor REO Mortgage
Loan) is
equal to the sum of the related Master Servicing Fee Rate and the
Trustee Fee
Rate and, in the case of a Non-Serviced Trust Loan, the "servicing
fee rate"
payable to the applicable Lead Master Servicer under the applicable
Lead PSA.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse Rating Event" shall mean, (i) when used with respect to
any
Class of Certificates, as of any date of determination, the
qualification,
downgrade or withdrawal of any rating then assigned to such Class
of
Certificates by any Rating Agency and (ii) when used with respect
to any
Companion Loan Securities, as of any date of determination the
qualification,
downgrade or withdrawal of any rating then assigned by any Rating
Agency to such
Companion Loan Securities (but only if such Companion Loan
Securities were
issued in connection with the inclusion of a Serviced Pari Passu
Companion Loan
into a trust as part of a securitization).
"Adverse REMIC Event" shall have the meaning assigned thereto
in
Section 10.01(i).
"Affiliate" shall mean, 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" shall mean this Pooling and Servicing Agreement,
together with all amendments hereof and supplements hereto.
"Ala Moana Portfolio Loan Combination" shall have the meaning
assigned thereto in the Preliminary Statement.
"Ala
Moana Portfolio Non-Pooled Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Ala Moana Portfolio Pari Passu Companion Loans" shall have the
meaning assigned thereto in the Preliminary Statement.
"Ala Moana Portfolio Pooled Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Ala Moana Portfolio Senior Loans" shall have the meaning
assigned
thereto in the Preliminary Statement.
"Ala Moana Portfolio Subordinate Companion Loans" shall have
the
meaning assigned thereto in the Preliminary Statement.
"Ala Moana Portfolio Subordinate Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"Ala Moana Portfolio Trust Loans" shall have the meaning
assigned
thereto in the Preliminary Statement.
"Anticipated Repayment Date" shall mean, with respect to any
ARD
Loan, the date specified in the related Mortgage Note after which
the Mortgage
Rate for any ARD Loan will increase as specified in the related
Mortgage Note.
"Appraisal" shall mean an appraisal or update thereof prepared by
an
Independent Appraiser.
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount calculated by the Master
Servicer and
reviewed by the Special Servicer (calculated initially as of the
Determination
Date immediately following the later of the date on which the
subject Mortgage
Loan or Loan Combination became a Required Appraisal Loan and the
date on which
the applicable Required Appraisal was obtained) equal to the
excess, if any, of:
(a) the sum of, without duplication, (i) the Stated Principal
Balance of such
Required Appraisal Loan, (ii) to the extent not previously advanced
by or on
behalf of the Master Servicer or the Trustee, all unpaid interest
on such
Required Appraisal Loan through the most recent Due Date prior to
the date of
calculation (exclusive of any portion thereof that represents
Default Interest),
(iii) all accrued and unpaid Special Servicing Fees, Liquidation
Fees and
Workout Fees in respect of such Required Appraisal Loan, (iv) all
related
unreimbursed Advances (which shall include, without duplication,
(1) any
Advances as to which the advancing party was reimbursed from a
source other than
the related Mortgagor and (2) any Unliquidated Advances) made by or
on behalf of
(plus all accrued interest on such Advances payable to) the Master
Servicer, the
Special Servicer and/or the Trustee with respect to such Required
Appraisal
Loan, (v) any other unpaid Additional Trust Fund Expenses in
respect of such
Required Appraisal Loan, and (vi) all currently due and unpaid real
estate taxes
and assessments, insurance premiums and, if applicable, ground
rents, and any
unfunded improvement or other applicable reserves, in respect of
the related
Mortgaged Property or REO Property, as the case may be (in each
case, net of any
amounts escrowed with the Master Servicer or the Special Servicer
for such
items); over (b) the Required Appraisal Value. Notwithstanding the
foregoing, if
(i) any Mortgage Loan or Loan Combination becomes a Required
Appraisal Loan,
(ii) either (A) no Required Appraisal or update thereof has been
obtained or
conducted, as applicable, in accordance with Section 3.09(a), with
respect to
the related Mortgaged Property during the 12-month period prior to
the date such
Mortgage Loan or Loan Combination became a Required Appraisal Loan
or (B) there
shall have occurred since the date of the most recent Required
Appraisal or
update thereof a material change in the circumstances surrounding
the related
Mortgaged Property that would, in the Special Servicer's reasonable
judgment,
materially affect the value of the related Mortgaged Property, and
(iii) no new
Required Appraisal is obtained or conducted, as applicable, in
accordance with
Section 3.09(a), within sixty (60) days after such Mortgage Loan or
Loan
Combination became a Required Appraisal Loan, then (x) until such
new Required
Appraisal is obtained or conducted, as applicable, in accordance
with Section
3.09(a), the Appraisal Reduction Amount shall equal 25% of the
Stated Principal
Balance of such Required Appraisal Loan, and (y) upon receipt or
performance, as
applicable, in accordance with Section 3.09(a), of such Required
Appraisal or
update thereof by the Special Servicer, the Appraisal Reduction
Amount for such
Required Appraisal Loan shall be recalculated in accordance with
the preceding
sentence of this definition. For purposes of this definition, each
Required
Appraisal Loan that is part of a Cross-Collateralized Group shall
be treated
separately for the purposes of calculating any Appraisal Reduction
Amount.
Notwithstanding the foregoing, Appraisal Reduction Amount shall
mean, with
respect to a Non-Serviced Trust Loan, any comparable amount
calculated by the
applicable Lead Special Servicer or Lead Master Servicer, as
applicable, with
respect to the related Loan Combination and allocated to such
Non-Serviced Trust
Loan, in accordance with and pursuant to the terms of the related
Lead PSA.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or REO Property, the appraised value thereof based upon
the most recent
appraisal or update thereof prepared by an Independent Appraiser
that is
contained in the related Servicing File or, in the case of any such
property
with or that had, as the case may be, an allocated loan amount of,
or securing a
Mortgage Loan or relating to an REO Loan, as the case may be, with
a Stated
Principal Balance of, less than $2,000,000, either (a) the most
recent appraisal
or update thereof that is contained in the related Servicing File
or (b) the
most recent "desktop" value estimate performed by the Special
Servicer that is
contained in the related Servicing File or with respect to any
Non-Serviced
Trust Loan, the appraisal value as calculated pursuant to the
related Lead PSA.
"Artesia" shall mean Artesia Mortgage Capital Corporation, or
its
successor in interest.
"Artesia
Mortgage Loan Purchase Agreement" shall mean that certain
mortgage loan purchase agreement, dated December 1, 2006, between
the Depositor
and Artesia, and relating to the transfer of the Artesia Mortgage
Loans to the
Depositor.
"Artesia Mortgage Loans" shall mean each of the Mortgage Loans
transferred and assigned to the Depositor pursuant to the Artesia
Mortgage Loan
Purchase Agreement.
"ARD Loan" shall mean any Mortgage Loan (or any successor REO
Loan
with respect thereto) that provides that if the unamortized
principal balance
thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan (or
successor REO Loan) will accrue additional interest at the rate
specified in the
related Mortgage Note and the related Mortgagor is required to
apply certain
excess monthly cash flow generated by the related Mortgaged
Property to the
repayment of the outstanding principal balance of such Mortgage
Loan.
"Assignment of Leases" shall mean, 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 Monthly Payment" shall mean: (a) with respect to any
Balloon Mortgage Loan (or Serviced Companion Loans) delinquent in
respect of its
Balloon Payment, for each Due Date coinciding with or following its
Stated
Maturity Date as of which such Mortgage Loan remains outstanding
and part of the
Trust Fund, or, in the case of the Serviced Companion Loans, the
related
Mortgage Loans remain part of the Trust Fund (provided that such
Mortgage Loan
was not paid in full, and no other Liquidation Event occurred in
respect
thereof, before the end of the Collection Period in which the
related Stated
Maturity Date occurs), the scheduled monthly payment of principal
and/or
interest deemed to be due in respect of such Mortgage Loan on such
Due Date
equal to the amount that would have been due in respect thereof on
such Due Date
if such Mortgage Loan had been required to continue to accrue
interest (other
than Default Interest) in accordance with its terms, and to pay
principal in
accordance with the amortization schedule (if any) in effect
immediately prior
to, and without regard to the occurrence of, the related Stated
Maturity Date;
(b) with respect to any REO Loan, for any Due Date as of which the
related REO
Property remains part of the Trust Fund, or the scheduled monthly
payment of
principal and/or interest deemed to be due in respect thereof on
such Due Date
equal to the Monthly Payment (or, in the case of a Balloon Loan
described in
clause (a) of this definition, the Assumed Monthly Payment) that
was due (or
deemed due) in respect of the related Mortgage Loan on the last Due
Date prior
to its becoming an REO Loan.
"ASTM" shall mean the American Society for Testing and
Materials.
"Authenticating Agent" shall mean any authenticating agent
appointed
pursuant to Section 8.12 (or, in the absence of any such
appointment, the
Trustee).
"Available AMP-E Distribution Amount" shall mean, with respect
to
any Distribution Date, an amount equal to (a) the sum, without
duplication, of
the following amounts: (i) the aggregate amount of all payments and
other
collections on or with respect to the Ala Moana Portfolio
Non-Pooled Trust Loan
and any REO Property with respect to the Ala Moana Portfolio Loan
Combination
allocable to the Ala Moana Portfolio Non-Pooled Trust Loan pursuant
to the
related Co-Lender Agreement that (A) were Received on or before
12:00 P.M. on
the Master Servicer Remittance Date and (B) are on deposit in the
Class AMP-E
Sub-Account as of 11:00 a.m. (New York City time) on such
Distribution Date,
(ii) the aggregate amount of any P&I Advances made by the
Master Servicer or the
Trustee with respect to the Ala Moana Portfolio Non-Pooled Trust
Loan for
distribution on the Class AMP-E Certificates on such Distribution
Date pursuant
to Section 4.03A, (iii) the aggregate amount deposited by the
Master Servicer in
the Class AMP-E Sub-Account for such Distribution Date pursuant to
Section
3.20(a) in connection with Prepayment Interest Shortfalls, and (iv)
to the
extent not included in the amount described in clause (a)(i) of
this definition,
if such Distribution Date occurs during March of any year (or
February, if the
Final Distribution Date occurs in February), the aggregate of the
Class AMP-E
Interest Reserve Amounts transferred from the Class AMP-E Interest
Reserve
Account to the Distribution Account in respect of the Ala Moana
Portfolio
Non-Pooled Trust Loan and any related REO Mortgage Loan for
distribution on such
Distribution Date; net of (b) the portion of the aggregate amount
described in
clause (a) of this definition that represents one or more of the
following: (i)
Monthly Payments that are due on a Due Date following the end of
the related
Collection Period (unless such Distribution Date is the Final
Distribution
Date), (ii) any amount payable or reimbursable to any Person with
respect to the
Ala Moana Portfolio Non-Pooled Trust Loan from the Class AMP-E
Custodial Account
pursuant to clauses (ii) through (xviii) of Section 3.05(a), (iii)
Prepayment
Premiums and/or Yield Maintenance Charges with respect to the Ala
Moana
Portfolio Non-Pooled Trust Loan, (iv) if such Distribution Date
occurs during
January of any year that is not a leap year or during February of
any year
(unless, in either case, the related Distribution Date is the Final
Distribution
Date), the Class AMP-E Interest Reserve Amounts with respect to the
Ala Moana
Portfolio Non-Pooled Trust Loan and any related REO Mortgage Loans
to be
withdrawn from the Distribution Account and deposited into the
Class AMP-E
Interest Reserve Account in respect of such Distribution Date and
held for
future distribution, all pursuant to Section 3.04(c), and (v) any
amounts
deposited in the Class AMP-E Sub-Account in error.
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to (a) the sum, without
duplication, of the
following amounts: (i) the aggregate amount of all payments and
other
collections on or with respect to the Mortgage Loans and any REO
Properties
(excluding any such amounts that relate to the Ala Moana Portfolio
Non-Pooled
Trust Loan, but including, with respect to the Non-Serviced Trust
Loans, payment
remitted by, or advances made by, the applicable Lead Master
Servicer) that (A)
were Received as of the end of the related Collection Period (or,
in the case of
the Non-Serviced Trust Loans as of 11:00 a.m. (New York City time)
on the Master
Servicer Remittance Date) and (B) are on deposit in the
Distribution Account as
of 11:00 a.m. (New York City time) on such Distribution Date, (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 deposited by the Master Servicer
in the
Distribution Account for such Distribution Date pursuant to Section
3.20(a) in
connection with Prepayment Interest Shortfalls, (iv) to the extent
not included
in clause (a)(i) of this definition, the aggregate amount
transferred from the
Excess Liquidation Proceeds Account to the Distribution Account
pursuant to
Section 3.05(d) in respect of such Distribution Date and (v) to the
extent not
included in the amount described in clause (a)(i) of this
definition, if such
Distribution Date occurs during March of any year (or February, if
the Final
Distribution Date occurs in February), the aggregate of the
Interest Reserve
Amounts transferred from the Interest Reserve Account to the
Distribution
Account in respect of the Interest Reserve Mortgage Loans and any
Interest
Reserve REO Mortgage Loans for distribution on such Distribution
Date; net of
(b) the portion of the aggregate amount described in clause (a) of
this
definition that represents one or more of the following: (i)
Monthly 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
Distribution
Account pursuant to clauses (ii) through (vii) of Section 3.05(b),
(iii)
Prepayment Premiums and/or Yield Maintenance Charges or The Shoppes
on Shugart
Shopping Center Mortgage Loan Yield Supplement Amount, (iv) if such
Distribution
Date occurs during January of any year that is not a leap year or
during
February of any year (unless, in either case, the related
Distribution Date is
the Final Distribution Date), the Interest Reserve Amounts with
respect to the
Interest Reserve Mortgage Loans and any Interest Reserve REO
Mortgage Loans to
be withdrawn from the Distribution Account and deposited into the
Interest
Reserve Account in respect of such Distribution Date and held for
future
distribution, all pursuant to Section 3.04(c), and (v) amounts
deposited in the
Distribution Account in error; provided that clauses (b)(i),
(b)(iii) and
(b)(iv) of this definition shall not apply on the Final
Distribution Date.
"Balloon Loan" shall mean 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
and as to which, in accordance with such terms, the payment due on
its Stated
Maturity Date is significantly larger than the Monthly Payment due
on the Due
Date preceding its Stated Maturity Date.
"Balloon Payment" shall mean, with respect to any Balloon Loan as
of
any date of determination, the payment, other than any regularly
scheduled
monthly payment, due with respect to such Mortgage Loan at
maturity.
"Bid Allocation" shall mean, with respect to the Master Servicer
or
any 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" shall mean any Certificate registered
in
the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate that constitutes a Book-Entry
Certificate.
"Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday
or
a day on which banking institutions in New York, New York, or in
any of the
cities in which the Corporate Trust Office of the Trustee, the
Primary Servicing
Office of the Master Servicer, the Primary Servicer or the Special
Servicer are
located, are authorized or obligated by law or executive order to
remain closed.
"CD 2006-CD3 Depositor" shall have the meaning assigned thereto
in
the Preliminary Statement.
"CD 2006-CD3 Master Servicer" shall have the meaning assigned
thereto in the Preliminary Statement.
"CD 2006-CD3 PSA" shall have the meaning assigned thereto in
the
Preliminary Statement.
"CD 2006-CD3 Special Servicer" shall have the meaning assigned
thereto in the Preliminary Statement.
"CD 2006-CD3 Trustee" shall have the meaning assigned thereto in
the
Preliminary Statement.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificates" shall mean any of the Class A-1, Class A-2,
Class
A-AB, Class A-3, Class A-4, Class A-1A, Class IO, 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 AMP-E1, Class AMP-E2,
Class R-I or
Class R-II Certificates, as applicable.
"Certificate Factor" shall mean, with respect to any Class of
Regular Interest Certificates, as of any date of determination, a
fraction,
expressed as a decimal carried to at least six places, the
numerator of which is
the then current Class Principal Balance or Notional Amount, as the
case may be,
of such Class of Regular Interest Certificates, and the denominator
of which is
the Original Class Principal Balance or initial Notional Amount, as
the case may
be, of such Class of Regular Interest Certificates.
"Certificate Owner" shall mean, 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" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the
then
outstanding principal balance of such Certificate equal to the
product of (a)
the then Certificate Factor for the Class of Principal Balance
Certificates to
which such Certificate belongs, multiplied by (b) the amount
specified on the
face of such Certificate as the initial Certificate Principal
Balance thereof.
"Certificate Register" shall mean the register maintained
pursuant
to Section 5.02.
"Certificate Registrar" shall mean the registrar appointed
pursuant
to Section 5.02.
"Certificateholder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, except that:
(i) neither
a Disqualified Organization nor a Disqualified Non-United States
Tax Person
shall be Holder of a Residual Interest 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 the rights and/or obligations of
any of the
Depositor, the Master Servicer, the Special Servicer or the Trustee
in its
respective capacity as such, any Certificate registered in the name
of the
Depositor, the Master Servicer, the Special Servicer or the
Trustee, as the case
may be, or any Certificate registered in the name of any of its
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
"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
"Certificateholder" only the
Person in whose name a Certificate is registered in the Certificate
Register.
"Certificateholder Reports" shall mean, collectively, the
Distribution Date Statement, the Mortgage Pool Data Update Report,
the Mortgage
Loan Payoff Notification Report and the CMSA Investor Reporting
Package.
"Certification Parties" shall have the meaning assigned thereto
in
Section 11.06.
"Certifying Person" shall have the meaning assigned thereto in
Section 11.06.
"Certifying Servicer" shall have the meaning assigned thereto
in
Section 11.09.
"CGCMT 2006-C4 Depositor" shall have the meaning assigned thereto
in
the Preliminary Statement.
"CGCMT 2006-C4 Master Servicer" shall have the meaning assigned
thereto in the Preliminary Statement.
"CGCMT 2006-C4 PSA" shall have the meaning assigned thereto in
the
Preliminary Statement.
"CGCMT 2006-C4 Special Servicer" shall have the meaning
assigned
thereto in the Preliminary Statement.
"CGCMT
2006-C4 Trustee" shall have the meaning assigned thereto in
the Preliminary Statement.
"Class" shall mean, collectively, all of the Certificates
bearing
the same alphabetical and, if applicable, numerical class
designation.
"Class A Certificates" shall mean the Class A-1, Class A-2,
Class
A-3 and Class A-4 Certificates.
"Class A-1 Certificate" shall mean 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 portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class A-1A Certificate" shall mean any one of the Certificates
with
a "Class A-1A" designation on the face thereof, substantially in
the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class A-2 Certificate" shall mean any one of the Certificates
with
a "Class A-2" designation on the face thereof, substantially in the
form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class A-3 Certificate" shall mean any one of the Certificates
with
a "Class A-3" designation on the face thereof, substantially in the
form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class A-4 Certificate" shall mean any one of the Certificates
with
a "Class A-4" designation on the face thereof, substantially in the
form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class A-AB Certificate" shall mean any one of the Certificates
with
a "Class A-AB" designation on the face thereof, substantially in
the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class A-AB Planned Principal Balance": The planned principal
balance set forth on Schedule VIII hereto relating to principal
payments for the
Class A-AB Certificates.
"Class A-J Certificate" shall mean any one of the Certificates
with
a "Class A-J" designation on the face thereof, substantially in the
form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class A-M Certificate" shall mean any one of the Certificates
with
a "Class A-M" designation on the face thereof, substantially in the
form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class AMP-E Adjusted Net Mortgage Rate" means with respect to
any
Distribution Date, (i) the Mortgage Rate of the Ala Moana Portfolio
Non-Pooled
Trust Loan, minus (ii) the Administrative Cost Rate.
"Class AMP-E Certificates" shall mean the Class AMP-E1 and
Class
AMP-E2 Certificates.
"Class AMP-E Custodial Account" shall mean the segregated account
or
sub-account created and maintained by the Master Servicer pursuant
to Section
3.04B(a) on behalf of the Trustee in trust for the Class AMP-E
Certificateholders, which shall be entitled "Wachovia Bank,
National
Association, as Master Servicer, on behalf of Wells Fargo Bank,
N.A., as
Trustee, in trust for the registered holders of COBALT CMBS
Commercial Mortgage
Trust 2006-C1, Commercial Mortgage Pass-Through Certificates,
Series 2006-C1."
"Class AMP-E Interest Reserve Account" shall mean the sub-account
of
the Distribution Account, which is created and maintained by the
Trustee
pursuant to Section 3.04(c) in trust for the Class AMP-E
Certificateholders,
which shall be entitled "Wells Fargo Bank, N.A., as Trustee, in
trust for the
registered holders of COBALT CMBS Commercial Mortgage Trust
2006-C1, Commercial
Mortgage Pass-Through Certificates, Series 2006-C1."
"Class AMP-E Interest Reserve Amount" shall mean, with respect
to
the Ala Moana Non-Pooled Trust Loan and any related REO Mortgage
Loan, for any
Distribution Date that occurs in February of any year and for any
Distribution
Date that occurs in January of any year that is not a leap year
(unless, in
either case, such Distribution Date is the final Distribution
Date), an amount
equal to one day's interest accrued at the related Mortgage Rate 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 due on
such Due Date), to the extent that a Monthly Payment is received in
respect
thereof for such Due Date as of the related Determination Date or a
P&I Advance
is made under this Agreement in respect thereof for such Due Date
by such
Distribution Date.
"Class AMP-E Majority Holder" shall mean the Holder or Holders
of
more than 50% of the aggregate Class Principal Balance of the Class
AMP-E
Certificates.
"Class AMP-E Principal Distribution Amount" shall mean a
principal
distribution amount calculated in the same manner as the Principal
Distribution
Amount, but solely with respect to the Ala Moana Portfolio
Non-Pooled Trust
Loan, and without regard to the proviso with respect to the Ala
Moana Portfolio
Non-Pooled Trust Loan set forth in the definition of "Principal
Distribution
Amount."
"Class AMP-E Representative" shall mean a representative
designated
by the Holders of greater than 50% of the Class Principal Balance
of the
Controlling AMP-E Class or, if not so designated, any single Holder
or
beneficial owner of AMP-E Certificates representing greater than
50% of the
Class Principal Balance of the Controlling AMP-E Class.
"Class AMP-E Sub-Account" shall mean a sub-account of the
Distribution Account established pursuant to Section 3.04(b), which
sub-account
shall constitute an asset of the Trust Fund and the Lower-Tier
REMIC.
"Class AMP-E1 Certificate" shall mean any of the Certificates with
a
"Class AMP-E1" designation on the face thereof, substantially in
the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class AMP-E2 Certificate" shall mean any of the Certificates with
a
"Class AMP-E2" designation on the face thereof, substantially in
the form of
Exhibit A-4 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class B Certificate" shall mean any one of the Certificates with
a
"Class B" designation on the face thereof, substantially in the
form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Certificate" shall mean any one of the Certificates with
a
"Class C" designation on the face thereof, substantially in the
form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Certificate" shall mean any one of the Certificates with
a
"Class D" designation on the face thereof, substantially in the
form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Certificate" shall mean any one of the Certificates with
a
"Class E" designation on the face thereof, substantially in the
form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates with
a
"Class F" designation on the face thereof, substantially in the
form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Certificate" shall mean any one of the Certificates with
a
"Class G" designation on the face thereof, substantially in the
form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Certificate" shall mean any of the Certificates with a
"Class H" designation on the face thereof, substantially in the
form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class IO Certificate" shall mean any one of the Certificates with
a
"Class IO" designation on the face thereof, substantially in the
form of Exhibit
A-2 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class IO Grantor Trust Interest" shall mean, that portion of
the
rights represented by the Class IO Certificates that evidences a
beneficial
ownership of The Shoppes on Shugart Shopping Center Yield
Supplement Amount.
"Class IO Notional Amount" shall mean, as of any date of
determination, the sum of the then Component Notional Amounts of
the Class IO
Components.
"Class IO Strip Rate" shall mean, with respect to each of the
Class
IO Components for any Distribution 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 IO Strip Rate be less than zero).
"Class J Certificate" shall mean any one of the Certificates with
a
"Class J" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Certificate" shall mean any of the Certificates with a
"Class K" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Certificate" shall mean any of the Certificates with a
"Class L" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class LA-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-AB Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-3 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-4 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-1A Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-M Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-J Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LAMP-E1 Interest" shall mean a regular interest in the
Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and
having the
Original Lower Tier Principal Amount and per annum rate of interest
set forth in
the Preliminary Statement hereto.
"Class LAMP-E2 Interest" shall mean a regular interest in the
Lower
Tier REMIC which is held as an asset of the Upper Tier REMIC and
having the
Original Lower Tier Principal Amount and per annum rate of interest
set forth in
the Preliminary Statement hereto.
"Class LB Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LC Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LD Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LE Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LF Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LG Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LH Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LJ Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LK Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LL Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LM Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LN Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LO Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LP Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class M Certificate" shall mean any of the Certificates with a
"Class M" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Certificate" shall mean any of the Certificates with a
"Class N" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class O Certificate" shall mean any of the Certificates with a
"Class O" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Certificate" shall mean any of the Certificates with a
"Class P" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing (i) a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions and (ii)
a beneficial interest in the related portion of the Grantor
Trust.
"Class P Sub-Account" shall mean a sub-account of the
Distribution
Account established pursuant to Section 3.04(b), which sub-account
shall
constitute an asset of the Trust Fund and the Grantor Trust, but
not an asset of
any REMIC Pool.
"Class Principal Balance" shall mean the aggregate principal
balance
of any Class of Principal Balance Certificates outstanding as of
any date of
determination. As of the Closing Date, the Class Principal Balance
of each Class
of Principal Balance Certificates shall equal the Original Class
Principal
Balance thereof. On each Distribution Date, the Class Principal
Balance of each
Class of Principal Balance Certificates shall be permanently
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
permanently reduced (subject to Section 4.05) by the amount of any
Realized
Losses and Additional Trust Fund Expenses deemed allocated thereto
on such
Distribution Date pursuant to Section 4.04(a). On each Distribution
Date, the
Class Principal Balance of each Class of Principal Balance
Certificates shall be
increased by the related Class Principal Reinstatement Amount, if
any, for such
Distribution Date.
"Class Principal Reinstatement Amount" shall have the meaning
assigned thereto in Section 4.05(a).
"Class R-I Certificate" shall mean any one of the Certificates
with
a "Class R-I" designation on the face thereof, substantially in the
form of
Exhibit A-7 attached hereto, and evidencing a portion of the sole
class of
"residual interests" in the Lower-Tier REMIC for purposes of the
REMIC
Provisions.
"Class R-II Certificate" shall mean any one of the Certificates
with
a "Class R-II" designation on the face thereof, substantially in
the form of
Exhibit A-7 attached hereto, and evidencing a portion of the sole
class of
"residual interests" in the Upper-Tier REMIC for purposes of the
REMIC
Provisions.
"Clearstream" shall mean Clearstream Banking, Societe Anonyme or
any
successor.
"Closing Date" shall mean December 21, 2006.
"CMSA" shall mean the Commercial Mortgage Securities Association,
or
any association or organization that is a successor thereto. If
neither such
association nor any successor remains in existence, "CMSA" shall be
deemed to
refer to such other association or organization as may exist whose
principal
membership consists of servicers, trustees, issuers, placement
agents and
underwriters generally involved in the commercial mortgage loan
securitization
industry, which is the principal such association or organization
in the
commercial mortgage loan securitization industry and one of whose
principal
purposes is the establishment of industry standards for
reporting
transaction-specific information relating to commercial mortgage
pass-through
certificates and commercial mortgage-backed bonds and the
commercial mortgage
loans and foreclosed properties underlying or backing them to
investors holding
or owning such certificates or bonds, and any successor to such
other
association or organization. If an organization or association
described in one
of the preceding sentences of this definition does not exist,
"CMSA" shall be
deemed to refer to such other association or organization as shall
be selected
by the Master Servicer and reasonably acceptable to the Trustee,
the Special
Servicer and the Controlling Class Representative.
"CMSA Advance Recovery Report" shall mean a report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Advance Recoverability Report" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA Bond Level File" shall mean the monthly report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Bond Level File" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA Collateral Summary File" shall mean 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" shall mean a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "CMSA 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 and, insofar
as it
requires the presentation of information in addition to that called
for by the
form of the "CMSA Comparative Financial Status Report" available as
of the
Closing Date on the CMSA Website.
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "CMSA 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" shall mean a 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. The initial
data for this
report shall be provided by each Mortgage Loan Seller.
"CMSA Historical Liquidation Report" shall mean a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Historical Liquidation Report" available
as of the
Closing Date on the CMSA Website, or such other form for the
presentation of
such information and containing such additional information as may
from time to
time be approved by the CMSA for commercial mortgage securities
transactions
generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" shall mean 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 Investor Reporting Package" shall mean, collectively:
(a) the following seven electronic files: (i) CMSA Loan Setup
File,
(ii) CMSA
Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Bond Level
File, (v) CMSA Financial File, (vi) CMSA Collateral Summary
File and
(vii) CMSA Special Servicer Loan File;
(b) the following twelve supplemental reports: (i) CMSA
Delinquent
Loan
Status Report, (ii) CMSA Historical Loan Modification and
Corrected
Mortgage
Loan Report, (iii) CMSA Historical Liquidation Report, (iv)
CMSA
REO Status
Report, (v) CMSA Operating Statement Analysis Report, (vi) CMSA
Comparative Financial Status Report, (vii) CMSA Servicer Watch
List,
(viii)
CMSA Loan Level Reserve/LOC Report, (ix) CMSA NOI Adjustment
Worksheet,
(x) CMSA Advance Recovery Report, (xi) CMSA Total Loan Report
and (xii)
CMSA Reconciliation of Funds Report; and
(c) such other reports as may be identified by the CMSA as part
of
the CMSA
Investor Reporting Package generally from time to time.
"CMSA Loan Level Reserve/LOC Report" shall mean a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Loan Level Reserve/LOC Report" available
as of the
Closing Date on the CMSA Website, or such other 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 Periodic Update File" shall mean 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. The initial data for this report shall be provided by
each Mortgage
Loan Seller. Each CMSA Loan Periodic Update File prepared by the
Master Servicer
shall, if applicable, be accompanied by a Monthly Additional Report
on
Recoveries and Reimbursements and all references herein to "CMSA
Loan Periodic
Update File" shall be construed accordingly.
"CMSA Loan Setup File" shall mean 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" shall mean a report prepared by
the
Master Servicer with respect to all the Performing Serviced Loans,
and by the
Special Servicer with respect to Specially Serviced Mortgage Loans
and REO
Loans, which report shall be substantially in the form of, and
contain 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 generally.
"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "CMSA 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.
"CMSA Property File" shall mean 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" shall mean a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "CMSA Reconciliation of Funds 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 REO Status Report" shall mean 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 Watch List" shall mean a report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Servicer Watch List" available as of the Closing Date on the
CMSA Website,
or in such other form for the presentation of such information and
containing
such additional information as may from time to time be approved by
the CMSA for
commercial mortgage securities transactions generally.
"CMSA Special Servicer Loan File" shall mean a report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Special Servicer Loan 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 Total Loan Report" shall mean a report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "CMSA Total Loan Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA Website" shall mean the CMSA's Website located at
"www.cmbs.org" or such other primary website as the CMSA may
establish for
dissemination of its report forms.
"Co-Lender Agreement" shall have the meaning assigned thereto in
the
Preliminary Statement.
"Code" shall mean the Internal Revenue Code of 1986 and
regulations
promulgated thereunder, including temporary regulations and
proposed regulations
to the extent that, by reason of their proposed effective date,
could, as of the
date of any determination or opinion as to the tax consequences of
any action or
proposed action or transaction, be applied to the Certificates.
"Collection Period" shall mean, with respect to any
Distribution
Date or Master Servicer Remittance Date, the period commencing on
the day
immediately following the Determination Date in the calendar month
preceding the
month in which such Distribution Date or Master Servicer Remittance
Date, as the
case may be, occurs (or, in the case of each of the initial
Distribution Date
and the initial Master Servicer Remittance Date, commencing
immediately
following the Cut-off Date) and ending on and including the
Determination Date
in the calendar month in which such Distribution Date or Master
Servicer
Remittance Date, as the case may be, occurs.
"COMM 2006-C8 Depositor" shall have the meaning assigned thereto
in
the Preliminary Statement.
"COMM 2006-C8 Master Servicer" shall have the meaning assigned
thereto in the Preliminary Statement.
"COMM 2006-C8 PSA" shall have the meaning assigned thereto in
the
Preliminary Statement.
"COMM 2006-C8 Special Servicer" shall have the meaning assigned
thereto in the Preliminary Statement.
"COMM 2006-C8 Trustee" shall have the meaning assigned thereto
in
the Preliminary Statement.
"Commission" shall mean the United States Securities and
Exchange
Commission or any successor agency.
"Companion Loan" shall have the meaning assigned thereto in the
Preliminary Statement.
"Companion Loan Noteholder" shall mean, with respect to any
Loan
Combination, the Holder of the Mortgage Note for the related
Companion Loan.
"Companion Loan Securities" means the securities issued in
connection with the inclusion of a Pari Passu Companion Loan into a
trust as
part of a securitization of one or more mortgage loans.
"Components" shall mean each of Component IO-A-1, Component
IO-A-2,
Component IO-A-AB, Component IO-A-3, Component IO-A-4, Component
IO-A-1A,
Component IO-AM, Component IO-AJ, Component IO-B, Component IO-C,
Component
IO-D, Component IO-E, Component IO-F, Component IO-G, Component
IO-H, Component
IO-J, Component IO-K, Component IO-L, Component IO-M, Component
IO-N, Component
IO-O and Component IO-P.
"Component IO-A-1" shall mean one of the twenty-two components
of
the Class IO Certificates having a Component Notional Amount which,
as of any
date of determination, is equal to the then current Uncertificated
Principal
Balance of the Class LA-1 Interest.
"Component IO-A-2" shall mean one of the twenty-two components
of
the Class IO Certificates having a Component Notional Amount which,
as of any
date of determination, is equal to the then current Uncertificated
Principal
Balance of the Class LA-2 Interest.
"Component IO-A-AB" shall mean one of the twenty-two components
of
the Class IO Certificates having a Component Notional Amount which,
as of any
date of determination, is equal to the then current Uncertificated
Principal
Balance of the Class LA-AB Interest.
"Component IO-A-3" shall mean one of the twenty-two components
of
the Class IO Certificates having a Component Notional Amount which,
as of any
date of determination, is equal to the then current Uncertificated
Principal
Balance of the Class LA-3 Interest.
"Component IO-A-4" shall mean one of the twenty-two components
of
the Class IO Certificates having a Component Notional Amount which,
as of any
date of determination, is equal to the then current Uncertificated
Principal
Balance of the Class LA-4 Interest.
"Component IO-A-1A" shall mean one of the twenty-two components
of
the Class IO Certificates having a Component Notional Amount which,
as of any
date of determination, is equal to the then current Uncertificated
Principal
Balance of the Class LA-1A Interest.
"Component IO-A-M" shall mean one of the twenty-two components
of
the Class IO Certificates having a Component Notional Amount which,
as of any
date of determination, is equal to the then current Uncertificated
Principal
Balance of the Class LA-M Interest.
"Component IO-A-J" shall mean one of the twenty-two components
of
the Class IO Certificates having a Component Notional Amount which,
as of any
date of determination, is equal to the then current Uncertificated
Principal
Balance of the Class LA-J Interest.
"Component IO-B" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LB Interest.
"Component IO-C" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LC Interest.
"Component IO-D" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LD Interest.
"Component IO-E" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LE Interest.
"Component IO-F" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LF Interest.
"Component IO-G" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LG Interest.
"Component IO-H" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LH Interest.
"Component IO-J" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LJ Interest.
"Component IO-K" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LK Interest.
"Component IO-L" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LL Interest.
"Component IO-M" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LM Interest.
"Component IO-N" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LN Interest.
"Component IO-O" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LO Interest.
"Component IO-P" shall mean one of the twenty-two components of
the
Class IO Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LP Interest.
"Component Notional Amount" shall mean with respect to each
Component and any date of determination, an amount equal to the
then current
Uncertificated Principal Balance of its Corresponding
Uncertificated Lower-Tier
Interest.
"Condemnation Proceeds" shall mean all cash amounts Received in
connection with 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 terms of the related Mortgage.
"Control Appraisal Event" shall exist with respect to any
Serviced
Loan Combination, if and for so long as:
(a) (1) the initial balance of the related Subordinate
Companion
Loan,
minus (2) the sum of (x) any principal payments, allocated to,
and
received
on, such Subordinate Companion Loan, (y) any Appraisal
Reduction
Amounts
allocated to such Subordinate Companion Loan, and (without
duplication) (z) Realized Losses allocated to such Subordinate
Companion
Loan,
is less than
(b) 25% of the initial balance of such Subordinate Companion
Loan.
"Controlling AMP-E Class" shall mean the Holders of the Class
AMP-E2
Certificates for so long as either (a) the Class Principal Balance
of the Class
AMP-E1 Certificates is zero or (b) the Class Principal Balance of
the Class
AMP-E2 Certificates then outstanding, reduced (to not less than
zero) by any
Appraisal Reduction Amount in respect of the Ala Moana Portfolio
Loan
Combination that is allocable to "Note E-1" of the Ala Moana
Portfolio Loan
Combination, is equal to or greater than 25% of an amount equal to
(a) the
Original Class Principal Balance of the Class AMP-E2 Certificates,
minus (b) all
payments of principal previously made with respect to the Class
AMP-E2
Certificates.
"Controlling Class" shall mean the Class of Certificates (other
than
the Residual Interest Certificates, the Class IO Certificates and
the Class
AMP-E Certificates) with the latest alphabetical Class designation
that has a
then-aggregate Class Principal Balance that is not less than 25% of
the Original
Class Principal Balance of such Class; provided that if no Class of
Principal
Balance Certificates has, as of such date of determination, a Class
Principal
Balance that meets the requirements above, then the Controlling
Class shall be
the then outstanding Class of Principal Balance Certificates
bearing the latest
alphabetic Class designation that has a Class Principal Balance
greater than
zero; and provided, further, that, for purposes of determining the
Controlling
Class, the Class A-1, Class A-2, Class A-AB, Class A-3, Class A-4
and Class
A-1-A Certificates shall be deemed a single Class of Certificates.
As of the
Closing Date, the Controlling Class will be the Class P
Certificates. If the
Controlling Class consists of Book-Entry Certificates, then the
rights of the
Holders of the Controlling Class set forth in this Agreement may be
exercised
directly by the relevant Certificate Owners, provided that the
identity of such
Certificate Owners has been confirmed to the Trustee to its
reasonable
satisfaction.
"Controlling Class Certificateholder" shall mean any Holder of
a
Certificate of the Controlling Class.
"Controlling Class Representative" shall mean the Holder or
Holders
of greater than 50% of the Voting Rights assigned to the
Controlling Class;
provided that no Holder of Voting Rights allocated to the
Controlling Class may
exercise any rights of such Class with respect to any Mortgage Loan
as to which
such Holder is a Mortgagor Affiliate Holder.
"Corporate Trust Office" shall mean the principal corporate
trust
office of the Trustee at which at any particular time its
asset-backed
securities trust business with respect to this Agreement shall be
administered,
which office at the date of the execution of this Agreement is
located at Wells
Fargo Center, Sixth and Marquette, Minneapolis, Minnesota
55479-0113 with
respect to certificate transfer and payment services and at 9062
Old Annapolis
Road, Columbia, Maryland 21045-1951 with respect to other trustee
and securities
administration services, or the principal trust office of any
successor trustee
qualified and appointed pursuant to Section 8.08.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had
been
a Specially Serviced Mortgage Loan but has ceased to be such in
accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by
reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the
related
Mortgaged Property's becoming an REO Property).
"Corresponding Certificate" shall have the meaning assigned
thereto
in the Preliminary Statement with respect to the Corresponding
Component or the
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Component" shall have the meaning assigned thereto
in
the Preliminary Statement with respect to the Corresponding
Certificate or the
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Uncertificated Lower-Tier Interest" shall have
the
meaning assigned thereto in the Preliminary Statement with respect
to the
Corresponding Certificate or any Corresponding Component.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage
Loan
that is cross-defaulted and cross-collateralized with any other
Mortgage Loan.
"Cross-Over Date" shall mean the Distribution Date on which (i)
the
Class A-1, Class A-2, Class A-3, Class A-4 and Class A-1-A
Certificates, or any
two or more of such Classes, remain outstanding and (ii) the
aggregate of the
Class Principal Balances of the 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 and Class P Certificates are reduced to zero as a result of
the
allocation of Realized Losses and Additional Trust Fund Expenses
pursuant to
Section 4.04(a).
"Custodial Account" shall mean either the Pool Custodial
Account,
the Class AMP-E Custodial Account or any Loan Combination Custodial
Account.
"Custodian" shall mean 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, the Mortgage Loan Sellers
or an
Affiliate of the Depositor or the Mortgage Loan Sellers. 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.
"Cut-off Date" shall mean, with respect to each Mortgage Loan,
the
related due date for such Mortgage Loan in December 2006.
"Cut-off Date Balance" shall mean, with respect to any Mortgage
Loan, the outstanding principal balance of such Mortgage Loan as of
the Cut-off
Date, net of all unpaid payments of principal due in respect
thereof on or
before such date.
"CWCapital" shall mean CWCapital LLC.
"Default Charges" shall mean Default Interest and/or late
payment
charges that are paid or payable, as the context may require, to
the Trust in
respect of any Mortgage Loan or any successor REO Loan with respect
thereto.
"Default Interest" shall mean, with respect to any Serviced Loan
or
any successor REO Loan with respect thereto, any amounts Received
thereon (other
than late payment charges, Prepayment Premiums or Yield Maintenance
Charges)
that represent penalty interest (arising out of a default) in
excess of: (i)
interest accrued on the principal balance of such Loan (or
successor REO Loan),
at the related Mortgage Rate (net of any applicable Additional
Interest Rate);
and (ii) in the case of any ARD Loan after the related Anticipated
Repayment
Date, any Post-ARD Additional Interest.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto
in
Section 3.21(k).
"Defeasance Collateral" shall mean, with respect to any
Defeasance
Loan, the Government Securities required or permitted to be pledged
in lieu of
prepayment pursuant to the terms thereof in order to obtain a
release of the
related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned
thereto
in Section 3.04(a).
"Defeasance Loan" shall mean any Mortgage Loan that permits the
related Mortgagor to pledge Defeasance Collateral to the holder of
such Mortgage
Loan in lieu of prepayment.
"Definitive Certificate" shall have the meaning assigned thereto
in
Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any
Non-Registered Certificate that has been issued as a Definitive
Certificate.
"Depositor" shall mean CWCapital Commercial Funding Corp, and
any
successor in interest.
"Depository" shall mean 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
Exchange Act.
"Depository Participant" shall mean 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" shall mean the eleventh calendar day of
each
month (or, if such eleventh day is not a Business Day, the Business
Day
immediately following such eleventh day), commencing in January
2007.
"Directing Holder" shall mean with respect to any Serviced Loan
Combination, the person or persons selected by the related Loan
Combination
Directing Holder, and with respect to any other Mortgage Loan, the
person
selected by the Controlling Class Representative; provided,
however, that (i)
absent such selection, or (ii) until a Directing Holder is so
selected or (iii)
upon receipt of a notice from the Controlling Class Representative
or Loan
Combination Directing Holder, as applicable, that a Directing
Holder is no
longer designated, the Directing Holder will be the Loan
Combination Directing
Holder or the Controlling Class Representative, as applicable;
provided,
further, that, in the case of a Directing Holder selected by the
Controlling
Class Representative, in order for the Trustee to certify the
status of such
Directing Holder, the Directing Holder must provide notice and
certification to
the Trustee as to its status as Directing Holder (including the
address and
telecopy number of such Directing Holder), and the Trustee shall
provide written
notice to the Controlling Class Certificateholders, the Special
Servicer and the
Master Servicer as to the designation of such Directing Holder
(including the
address and telecopy number of such Directing Holder). No Mortgagor
Affiliate
Holder may be a Directing Holder. The Trustee acknowledges and
agrees that with
respect to each Serviced Loan Combination the Person set forth on
Schedule V
shall be designated as the initial Directing Holder with respect to
such Loan
Combination, and that no further notice of such selection is
required. In the
event that a Controlling Class Representative or Loan Combination
Directing
Holder appoints a third party (including any affiliate) to act as
Directing
Holder, none of the parties to this Agreement shall be obligated to
recognize
such appointment unless such Controlling Class Representative or
Loan
Combination Directing Holder shall have delivered to each party to
this
Agreement a certification regarding such appointment. Any Loan
Combination
Directing Holder that is a Directing Holder may, in its capacity as
Directing
Holder, only control, direct, prohibit or be consulted with respect
to the
enforcement of the related Mortgage or the servicing and
administration of the
related Serviced Loan Combination to the extent set forth in this
Agreement. The
Directing Holder shall be required to keep all non-public
information received
by it in such capacity pursuant to this Agreement confidential and,
upon its
designation as such, shall deliver to the Trustee a confirmation to
such effect.
Other than as set forth on Schedule V, the initial Directing Holder
shall be CW
Capital Investments LLC.
"Directly Operate" shall mean, with respect to any REO Property,
the
furnishing or rendering of services to the tenants thereof, the
management or
operation of such REO Property, the holding of such REO Property
primarily for
sale or lease, the performance of any construction work thereon or
any use of
such REO Property in a trade or business conducted by the
Lower-Tier REMIC or
either Loan REMIC, 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" shall mean, with respect to any prepaid
Mortgage
Loan or REO Mortgage Loan, for purposes of allocating any
Prepayment Premium or
Yield Maintenance Charge Received with respect thereto among the
Class A-1,
Class A-2, Class A-AB, Class A-3, Class A-4, Class A-1-A, Class
A-J, Class A-M,
Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates, a
rate equal to the yield (when compounded monthly) on the U.S.
Treasury issue
(primary issue) with a maturity date closest to the maturity date
or, in the
case of any ARD Loan, the Anticipated Repayment Date for such
prepaid Mortgage
Loan or REO Mortgage Loan, as published in Federal Reserve
Statistical Release
H.15 (519) published by the Federal Reserve Board; provided that if
there are
two such U.S. Treasury issues (a) with the same coupon, the issue
with the lower
yield shall apply, and (b) with maturity dates equally close to the
maturity
date or, in the case of any ARD Loan, the Anticipated Repayment
Date for such
prepaid Mortgage Loan or REO Mortgage Loan, the issue with the
earliest maturity
date shall apply.
"Disqualified Non-United States Tax Person" shall mean, with
respect
to any Residual Interest Certificate, any Non-United States Tax
Person or agent
thereof other than: (1) a Non-United States Tax Person that (a)
holds such
Residual Interest Certificate and, for purposes of Treasury
Regulations Section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code,
(b) certifies
that it understands that, for purposes of Treasury Regulations
Section
1.860E-1(c)(4)(ii), as a Holder of such Residual Interest
Certificate for United
States federal income tax purposes, it may incur tax liabilities in
excess of
any cash flows generated by such Residual Interest Certificate and
intends to
pay taxes associated with holding such Residual Interest
Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS
Form W-8ECI
or successor form and has agreed to update such form as required
under the
applicable Treasury regulations; or (2) a Non-United States Tax
Person that has
delivered to the Transferor, the Trustee and the Certificate
Registrar an
opinion of nationally recognized tax counsel to the effect that (x)
the Transfer
of such Residual Interest Certificate to it is in accordance with
the
requirements of the Code and the regulations promulgated thereunder
and (y) such
Transfer of such Residual Interest Certificate will not be
disregarded for
United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following: (i)
the
United States, any State or any political subdivision thereof, any
foreign
government, international organization, or any agency or
instrumentality of any
of the foregoing; (ii) any organization (except certain farmers'
cooperatives
described in Section 521 of the Code) that 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 income); (iii) rural
electric and
telephone cooperatives described in Section 1381 of the Code; or
(iv) any other
Person so designated by the Trustee or the Tax Administrator based
upon an
Opinion of Counsel that the holding of an Ownership Interest in a
Residual
Interest 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 Interest 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.
"Disqualified Partnership" shall mean any domestic entity
classified
as a partnership under the Code if any of its beneficial owners,
directly or
indirectly (other than through a U.S. corporation), are (or are
permitted to be
under the related partnership agreement) Disqualified Non-United
States Tax
Persons.
"Distributable Certificate Interest" shall mean, with respect to
any
Class of Regular Interest Certificates for any Distribution Date,
subject to
Section 4.05(b), an amount of interest equal to the amount of
Accrued
Certificate Interest in respect of such Class of Certificates for
the related
Interest Accrual Period, reduced (to not less than zero) by that
portion, if
any, of the Net Aggregate Prepayment Interest Shortfall (or, in the
case of the
Class AMP-E Certificates, the Net AMP-E Prepayment Interest
Shortfall) for such
Distribution Date allocated to such Class of Certificates as
provided below. The
Net Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date
shall be allocated among the respective Classes of Regular Interest
Certificates
(other than the Class AMP-E Certificates) on a pro rata basis in
accordance
with, the respective amounts of Accrued Certificate Interest for
each such Class
of Certificates for the related Interest Accrual Period. The Net
AMP-E
Prepayment Interest Shortfall, if any, for each Distribution Date
shall be
allocated among the Classes of AMP-E Certificates on a pro rata
basis in
accordance with the respective amounts of Accrued Certificate
Interest for each
such Class of Certificates for the related Interest Accrual
Period.
"Distribution Account" shall mean the segregated account or
accounts
created and maintained by the Trustee pursuant to Section 3.04(b),
which shall
be entitled "Wells Fargo Bank, N.A., as Trustee, in trust for the
registered
holders of COBALT CMBS Commercial Mortgage Trust 2006-C1,
Commercial Mortgage
Pass-Through Certificates, Series 2006-C1" which account shall be
deemed to
consist of, collectively, the Lower-Tier Distribution Account, the
Upper-Tier
Distribution Account, the Class AMP-E Sub-Account, the Class P
Sub-Account, the
Class AMP-E Interest Reserve Account and the Interest Reserve
Account.
"Distribution Date" shall mean, with respect to any
Determination
Date, the fourth Business Day following such Determination Date,
commencing in
January 2007, on which Distribution Date, among other things, the
Trustee is to
make distributions on the Certificates.
"Distribution Date Statement" shall have the meaning assigned
thereto in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in
Section
2.03(a).
"Due Date" shall mean: (i) with respect to any Mortgage Loan on
or
prior to its Stated Maturity Date, the day of the month set forth
in the related
Mortgage Note on which each Mortgage Monthly Payment on such
Mortgage Loan is
scheduled to be first due; (ii) with respect to any Mortgage Loan
after its
Stated Maturity Date, the day of the month set forth in the related
Mortgage
Note on which each Monthly Payment on such Mortgage Loan had been
scheduled to
be first due; and (iii) with respect to any REO Loan, the day of
the month set
forth in the related Mortgage Note on which each Monthly Payment on
the related
Mortgage Loan had been scheduled to be first due.
"EDGAR" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained
with
a federal or state chartered depository institution or trust
company, the
long-term deposit or unsecured debt obligations of which are rated
at least "AA"
or "A" (without regard to any plus or minus) by Fitch and "AA-" (or
"A" (without
regard to any plus or minus), if the short-term unsecured debt
obligations are
rated at least "A-1") by S&P (or, in the case of any Rating
Agency, such lower
rating as will not result in an Adverse Rating Event with respect
to any Class
of Certificates or Companion Loan Securities, as evidenced in
writing by such
Rating Agency) at any time such funds are on deposit therein (if
such funds are
to be held for more than thirty (30) days), or the short-term
deposits of which
are rated at least "A-1" by S&P and at least "F-1" by Fitch
(or, in the case of
any Rating Agency, such lower rating as will not result in an
Adverse Rating
Event with respect to any Class of Certificates or Companion Loan
Securities, as
evidenced in writing by such Rating Agency) at any time such funds
are on
deposit therein (if such funds are to be held for thirty (30) days
or less); or
(ii) a segregated trust account maintained with the trust
department of a
federal or state chartered depository institution or trust company
acting in its
fiduciary capacity (which may be the Trustee), has a combined
capital and
surplus of at least $50,000,000, is subject to supervision or
examination by
federal or state authority and, 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); or (iii)
any other account, the use of which would not, in and of itself,
cause an
Adverse Rating Event with respect to any Class of Certificates or
Companion Loan
Securities, as evidenced in writing by each Rating Agency.
"Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the Fannie
Mae Multifamily
Guide and the ASTM Standard for Environmental Site Assessments,
each as amended
from time to time.
"Environmental Insurance Policy" shall mean, with respect to
any
Mortgaged Property or REO Property, any insurance policy covering
pollution
conditions and/or other environmental conditions that is maintained
from time to
time in respect of such Mortgaged Property or REO Property, as the
case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the
Mortgage
Loans identified on Schedule III hereto.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as amended.
"Escrow Payment" shall mean 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 items for which an
escrow has
been created in respect of the related Mortgaged Property.
"Euroclear" shall mean Euroclear Bank as operator of the
Euroclear
System or any successor.
"Event of Default"
shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any, of
(a)
the Net Liquidation Proceeds from the sale or liquidation of a
Specially
Serviced Mortgage Loan or REO Property, net of (i) interest on any
related
Advances, (ii) any related Servicing Advances and (iii) any
Liquidation Fee
payable from such Net Liquidation Proceeds, over (b) the amount
needed to pay
off the Mortgage Loan or related REO Loan in full and reimburse the
Trust for
any prior Additional Trust Fund Expenses related to such Mortgage
Loan. Any
Excess Liquidation Proceeds in respect of a Loan REMIC Loan will be
deemed
distributed in respect of the related Loan REMIC Residual Interest
and deemed
deposited in the Excess Liquidation Proceeds Account.
"Excess Liquidation Proceeds Account" shall mean the segregated
account created and maintained by the Trustee pursuant to Section
3.04(d) in
trust for the Certificateholders, which shall be entitled "Wells
Fargo Bank,
N.A., as Trustee, in trust for the registered Holders of COBALT
CMBS Commercial
Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through
Certificates, Series
2006-C1."
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as
amended.
"Exemption-Favored Party" shall mean any of (i) Wachovia
Capital
Markets, LLC, Citigroup Global Markets Inc. or Deutsche Bank
Securities Inc.,
(ii) any Person directly or indirectly, through one or more
intermediaries,
controlling, controlled by or under common control with Wachovia
Capital
Markets, LLC, Citigroup Global Markets Inc. or Deutsche Bank
Securities Inc. and
(iii) any member of any underwriting syndicate or selling group of
which any
Person described in clauses (i), (ii) or (iii) is a manager or
co-manager with
respect to a Class of Investment Grade Certificates.
"Fannie Mae" shall mean the Federal National Mortgage Association
or
any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or
any
successor.
"Final Distribution Date" shall mean the Distribution Date on
which
the final distribution is to be made with respect to the
Certificates in
connection with a termination of the Trust Fund pursuant to Article
IX.
"Final Recovery Determination" shall mean a determination by
the
Special Servicer (as evidenced by an officer's certificate
delivered by the
Special Servicer pursuant to Section 3.09(g)) with respect to any
Specially
Serviced Mortgage Loan or REO Property that there has been a
recovery of all
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds and
other
payments or recoveries that the Special Servicer has determined, in
accordance
with the Servicing Standard, will be ultimately recoverable (or in
the case of
the Non-Serviced Loan Combinations, a "Final Recovery
Determination" as defined
in the applicable Lead PSA with respect to such loan); provided
that the term
Final Recovery Determination shall not apply to: (i) a Mortgage
Loan that was
paid in full; or (ii) a Mortgage Loan or REO Property, as the case
may be, that
was purchased by (A) the applicable Mortgage Loan Seller pursuant
to Section
2.03(a) and the applicable Mortgage Loan Purchase Agreement, (B) a
Purchase
Option Holder or its assignee pursuant to Section 3.19, (C) the
Depositor, the
Mortgage Loan Sellers, the Special Servicer, a Controlling
Class
Certificateholder or the Master Servicer pursuant to Section 9.01,
or the holder
of a related mezzanine loan in connection with a Mortgage Loan
default, as set
forth in the related intercreditor agreement or (D) in the case of
the Loan
Combination Trust Mortgage Loans, the related Companion Loan
Noteholder (or, in
the case of the Ala Moana Portfolio Trust Loans, the Class AMP-E
Majority Holder
or the Holders of the Ala Moana Subordinate Companion Loans) or
their designees
pursuant to the related Co-Lender Agreement.
"Fitch" shall mean Fitch, Inc. or its successor in interest. If
neither such rating agency nor any successor remains in existence,
"Fitch" shall
be deemed to refer to such other nationally recognized statistical
rating agency
or other comparable Person designated by the Depositor, notice of
which
designation shall be given to the Trustee, the Master Servicer and
the Special
Servicer, and specific ratings of Fitch, Inc. herein referenced
shall be deemed
to refer to the equivalent ratings of the party so designated.
"Form 8-K Disclosure Information" shall have the meaning
assigned
thereto in Section 11.07.
"Fortress/Ryan's Portfolio Loan Combination" shall have the
meaning
assigned thereto in the Preliminary Statement.
"Fortress/Ryan's
Portfolio Pari Passu Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Fortress/Ryan's Portfolio Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"FV Bid"
shall have the meaning assigned thereto in Section 3.19(c).
"FV Price" shall have the meaning assigned thereto in Section
3.19(c).
"GAAP" shall mean generally accepted accounting principles in
the
United States of America.
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule
144A Global
Certificate or the Regulation S Global Certificate.
"Global Opinion" shall have the meaning assigned thereto in
Section
12.12.
"Government Securities" shall mean "Government Securities" as
defined in Section 2(a)(16) of the Investment Company Act of 1940,
excluding any
such securities that are not acceptable to any Rating Agency as
Defeasance
Collateral.
"Grantor Trust" shall have the meaning assigned thereto in the
Preliminary Statement hereto.
"Grantor Trust Assets" shall mean any Post-ARD Additional
Interest
Received with respect to any ARD Loan after its Anticipated
Repayment Date and
The Shoppes on Shugart Shopping Center Yield Supplement Amount.
"Grantor Trust Provisions" shall mean subpart E, Part I of
subchapter J of the Code, including Treasury Regulations
Section
301.7701-4(c)(2).
"Ground Lease" shall mean, with respect to any Mortgage Loan
for
which the related Mortgagor has a leasehold interest in the related
Mortgaged
Property, the lease agreement(s) (including any lease agreement
with respect to
a master space lease) creating such leasehold interest.
"Hazardous Materials" shall mean 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 asbestos and asbestos-containing
materials,
polychlorinated biphenyls, radon gas, petroleum and petroleum
products, urea
formaldehyde and any substance classified as being "in inventory,"
"usable work
in process" or similar classification which would, if classified as
unusable, be
included in the foregoing definition.
"Holder" shall mean, with respect to a Certificate, a
Certificateholder and, with respect to any Uncertificated
Lower-Tier Interest or
Loan REMIC Regular Interest, the Trust.
"HUD-Approved Servicer" shall mean a servicer that is a
mortgagee
approved by the Secretary of Housing and Urban Development pursuant
to Sections
203 and 211 of the National Housing Act.
"Independent" shall mean, 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,
any
Controlling Class Certificateholder, and with respect to matters
relating to a
particular Loan Combination any Companion Loan Noteholder (or, in
the case of
the Ala Moana Portfolio Loan Combination, the Class AMP-E Majority
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,
any
Controlling Class Certificateholder, and with respect to matters
relating to a
particular Loan Combination any Companion Loan Noteholder (or, in
the case of
the Ala Moana Portfolio Loan Combination, the Class AMP-E Majority
Holder), or
any Affiliate thereof, and (iii) is not connected with the
Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer,
any
Controlling Class Certificateholder, and with respect to matters
relating to a
particular Loan Combination any Companion Loan Noteholder (or, in
the case of
the Ala Moana Portfolio Loan Combination, the Class AMP-E Majority
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 Special Servicer, any
Controlling Class
Certificateholder, and with respect to matters relating to a
particular Loan
Combination any Companion Loan Noteholder, the Class AMP-E Majority
Holder, 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, such
Controlling Class
Certificateholder, such Companion Loan Noteholder, the Class AMP-E
Majority
Holder, or any Affiliate thereof, as the case may be, provided that
such
ownership constitutes less than 1% of the total assets owned by
such Person.
"Independent
Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the
Appraisal
Institute, (ii) if the state in which the subject Mortgaged
Property is located
certifies or licenses appraisers, is certified or licensed in such
state, and
(iii) has a minimum of five (5) years' experience in the subject
property type
and market.
"Independent Contractor" shall mean: (a) any Person that would be
an
"independent contractor" with respect to the Lower-Tier REMIC or
either Loan
REMIC within the meaning of Section 856(d)(3) of the Code if the
Lower-Tier
REMIC or either such Loan REMIC was 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 at no expense to the
Master
Servicer, the Special Servicer, the Trustee or the Trust Fund,
delivered to the
Trustee (and, if any Loan Combinations are affected, to the
Companion Loan
Noteholder, and in the case of the Ala Mona Portfolio Loan
Combination, the
Holders of the Class AMP-E Certificates), provided that (i) such
REMIC Pool does
not receive or derive any income from such Person and (ii) the
relationship
between such Person and such REMIC Pool is at arm's length, all
within the
meaning of Treasury Regulations Section 1.856-4(b)(5); or (b) any
other Person
upon receipt by the Trustee (and, if any Loan Combinations are
affected, to the
Companion Loan Noteholder, and in the case of the Ala Mona
Portfolio Loan
Combination, the Holders of the Class AMP-E Certificates) 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 for
purposes of Section 860D(a) of the Code, or cause any income
realized in respect
of such REO Property to fail to qualify as Rents from Real
Property, due to such
Person's failure to be treated as an Independent Contractor.
"Initial Bidder" shall have the meaning assigned thereto in
Section
3.19(c).
"Initial Trust Balance" shall be as set forth in the
Preliminary
Statement hereto and shall equal the aggregate Cut-off Date
Balances of the
Mortgage Loans.
"Institutional Accredited Investor" or "IAI" shall mean an
"accredited investor" as defined in any of paragraphs (1), (2), (3)
and (7) of
Rule 501(a) under the Securities Act or any entity in which all of
the equity
owners come within such paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage
Loan,
any hazard insurance policy, flood insurance policy, title policy,
Environmental
Insurance 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" shall mean the 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" shall have the meaning assigned
thereto in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage Loan, any Uncertificated
Lower-Tier Interests
or any Class of Regular Interest Certificates, in each case
consisting of one of
the following: (i) a 360-day year consisting of twelve 30-day
months; (ii)
actual number of days elapsed in a 360-day year; (iii) actual
number of days
elapsed in a 365-day year; or (iv) actual number of days elapsed in
an actual
calendar year (taking account of leap year).
"Interest Accrual Period" shall mean with respect to any Class
of
Regular Interest Certificates, Uncertificated Lower-Tier Interests
or Loan REMIC
Regular Interests and any Distribution Date, the period beginning
on the first
day of the calendar month preceding the calendar month in which the
related
Distribution Date occurs and ending on the last day of the calendar
month
preceding the calendar month in which such Distribution Date
occurs, calculated
assuming that each month has 30 days and each year has 360
days.
"Interest Reserve Account" shall mean the sub-account of the
Distribution Account, which is created and maintained by the
Trustee pursuant to
Section 3.04(c) in trust for Certificateholders, which shall be
entitled "Wells
Fargo Bank, N.A., as Trustee, in trust for the registered holders
of COBALT CMBS
Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through
Certificates, Series 2006-C1."
"Interest Reserve Amount" shall mean, with respect to each
Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for
any
Distribution Date that occurs in February of any year and for any
Distribution
Date that occurs in January of any year that is not a leap year
(unless, in
either case, such Distribution Date is the Final Distribution
Date), an amount
equal to one day's interest accrued at the related Mortgage Rate
(net of the
related Additional Interest Rate in the case of any ARD Loan or
related REO
Mortgage Loan after the related Anticipated Repayment Date) 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 due on
such Due Date), to the extent that a Monthly Payment is Received in
respect
thereof for such Due Date as of the related Determination Date or a
P&I Advance
is made under this Agreement in respect thereof for such Due Date
by such
Distribution Date.
"Interest Reserve Mortgage Loan" shall mean any Mortgage Loan
(other
than the Ala Moana Portfolio Non-Pooled Trust Loan) that accrues
interest on an
Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO
Mortgage
Loan that relates to a predecessor Interest Reserve Mortgage
Loan.
"Interested Person" shall mean the Depositor, the Master
Servicer,
the Special Servicer, the Trustee, any Certificateholder, or any
Person known to
a Responsible Officer of the Trustee to be an Affiliate of any such
Person.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate, other than a Residual Interest
Certificate, that
is rated in one of the four highest generic rating categories by at
least one
Rating Agency.
"IRS" shall mean the Internal Revenue Service or any successor
agency.
"Late Collections" shall mean: (a) with respect to any Mortgage
Loan, all amounts Received in connection therewith during any
Collection Period,
whether as payments, Insurance Proceeds, Condemnation Proceeds,
Liquidation
Proceeds or otherwise, which represent late collections of the
principal and/or
interest portions of a Monthly Payment (other than a Balloon
Payment) or an
Assumed Monthly Payment in respect of such Mortgage Loan due or
deemed due on a
Due Date in a previous Collection Period, or on a Due Date
coinciding with or
preceding the Cut-off Date, and not previously recovered; and (b)
with respect
to any REO Loan, all amounts Received in connection with the
related REO
Property during any Collection Period, whether as Insurance
Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which
represent late collections of the principal and/or interest
portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in
respect of the predecessor Mortgage Loan, or the principal and/or
interest
portions of an Assumed Monthly Payment in respect of such REO Loan,
due or
deemed due on a Due Date in a previous Collection Period and not
previously
recovered.
"Lead Master Servicer" shall mean each of the CD 2006-CD3
Master
Servicer, the CGCMT 2006-C4 Master Servicer, the WBCMT 2006-C28
Master Servicer
and the COMM 2006-C8 Master Servicer.
"Lead PSA" shall mean each of the CD 2006-CD3 PSA, the CGCMT
2006-C4
PSA, the WBCMT 2006-C28 PSA and the COMM 2006-C8 PSA.
"Lead Special Servicer" shall mean each of the CD 2006-CD3
Special
Servicer, the CGCMT 2006-C4 Special Servicer, the WBCMT 2006-C28
Special
Servicer and the COMM 2006-C8 Special Servicer.
"Lead Trustee" shall mean each of the CD 2006-CD3 Trustee, the
CGCMT
2006-C4 Trustee, the WBCMT 2006-C28 Trustee and the COMM 2006-C8
Trustee.
"Liquidation Event" shall mean: (a) 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 or related Loan Combination Trust Mortgage Loan
is
repurchased by the applicable Mortgage Loan Seller pursuant to
Section 2.03(a)
and the applicable Mortgage Loan Purchase Agreement, (iv) such
Mortgage Loan is
purchased by a Purchase Option Holder or its assignee pursuant to
Section 3.19,
(v) such Mortgage Loan is purchased by the Depositor, the Special
Servicer, a
Mortgage Loan Seller, a Controlling Class Certificateholder or the
Master
Servicer pursuant to Section 9.01, (vi) such Mortgage Loan is
purchased by the
holder of a related mezzanine loan on behalf of the related
Mortgagor in
connection with a Mortgage Loan default, as set forth in the
related
intercreditor agreement, or (vii) in the case of any of the Loan
Combination
Trust Mortgage Loans, such Loan Combination Trust Mortgage Loan is
purchased by
any related Companion Loan Noteholder or its designee pursuant to
the related
Co-Lender Agreement or the related Lead PSA; and (b) with respect
to any
Serviced 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, or (ii) such REO Property is purchased by the Depositor,
the Special
Servicer, a Mortgage Loan Seller, a Controlling Class
Certificateholder or the
Master Servicer pursuant to Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not
otherwise
covered by Servicing Advances) in connection with the liquidation
of any
Specially Serviced Mortgage Loan or Serviced REO Property pursuant
to Sections
3.09 or 3.19 (including legal fees and expenses, committee or
referee fees and,
if applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain
specified events
pursuant to Section 3.11(b).
"Liquidation Fee Rate" shall mean, with respect to each
Specially
Serviced Mortgage Loan or Serviced REO Property as to which a
Liquidation Fee is
payable, 1.00%.
"Liquidation Proceeds" shall mean cash amounts (other than
Insurance
Proceeds and REO Revenues) Received in connection with: (i) the
full or partial
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;
(ii) the
realization upon any deficiency judgment obtained against a
Mortgagor; (iii) the
purchase of a Specially Serviced Mortgage Loan by a Purchase Option
Holder or
its assignee pursuant to Section 3.19; (iv) the repurchase of a
Mortgage Loan by
the applicable Mortgage Loan Seller(s) pursuant to Section 2.03(a)
and the
applicable Mortgage Loan Purchase Agreement(s); (v) the purchase of
a Mortgage
Loan or REO Property by the Depositor, a Mortgage Loan Seller, the
Special
Servicer, a Controlling Class Certificateholder or the Master
Servicer pursuant
to Section 9.01; (vi) the purchase of a Mortgage Loan by the holder
of a related
mezzanine loan on behalf of the related Mortgagor in connection
with a Mortgage
Loan default, as set forth in the related intercreditor agreement;
or (vii) in
the case of any of the Loan Combination Trust Mortgage Loans, the
purchase of
such Mortgage Loan by any related Companion Loan Noteholder or its
designee
pursuant to the Co-Lender Agreement or the related Lead PSA.
"Loan" shall mean any Mortgage Loan or Companion Loan.
"Loan Combination" shall have the meaning assigned thereto in
the
Preliminary Statement (and shall include any successor REO
Loans).
"Loan Combination Custodial Account" shall mean, with respect to
any
Serviced Loan Combination, the segregated account or sub-accounts
created and
maintained by the Master Servicer pursuant to Section 3.04A on
behalf of the
Holders of such Loan Combination. For the avoidance of doubt, there
are no
Serviced Loan Combinations with respect to this transaction.
"Loan Combination Directing Holder" with respect to any Loan
Combination, will be as follows:
(a) with respect to the 311 South Wacker Loan Combination, the
"Directing
Certificateholder" within the meaning of the related Lead PSA;
(b) with respect to Fortress/Ryan's Portfolio Loan Combination,
the
"Directing
Certificateholder" within the meaning of the related Lead PSA;
(c) with respect to the Ala Moana Portfolio Loan Combination,
the
"Controlling Holder" within the meaning of the related
Co-Lender
Agreement;
and
(d) with respect to the ShopKo Portfolio Loan Combination, the
"Directing
Lender" within the meaning of the related Co-Lender Agreement.
"Loan Combination Mortgaged Property" shall mean any of the
properties securing a Loan Combination.
"Loan Combination Noteholders" shall mean, with respect to each
Loan
Combination, the Trustee, as holder of the Mortgage Note or
Mortgage Notes for
the related Loan Combination Trust Mortgage Loan and the related
Companion Loan
Noteholder.
"Loan Combination Remittance Amount" shall mean, with respect to
any
Master Servicer Remittance Date and each Serviced Loan Combination,
an amount
equal to: (a) the aggregate amount of (i) all payments and other
collections on
or with respect to the applicable Loan Combination and the related
Mortgaged
Property (if it becomes an REO Property) that (A) were received as
of the close
of business on the immediately preceding Determination Date and (B)
are on
deposit or are required to be on deposit in the related Loan
Combination
Custodial Account as of 12:00 noon (New York City time) on such
Master Servicer
Remittance Date, including any such payments and other collections
transferred
to the related Loan Combination Custodial Account from the related
Loan
Combination REO Account (if established), and (ii) any and all
P&I Advances made
with respect to the Loan Combination Trust Mortgage Loan(s); net of
(b) the
portion of the aggregate amount described in clause (a) of this
definition that
represents one or more of the following--(i) Monthly Payments that
are due on a
Due Date following the end of the related Collection Period, (ii)
any amount
payable or reimbursable to any Person from the related Loan
Combination
Custodial Account pursuant to clauses (ii) through (xv) of Section
3.05A, and
(iii) any amounts deposited in the related Loan Combination
Custodial Account in
error. For the avoidance of doubt, there are no Serviced Loan
Combinations with
respect to this transaction.
"Loan Combination Remittance Date" shall mean, (i) with respect
to
each Serviced Companion Loan that is not an asset of a
securitization, the
Master Servicer Remittance Date, and (ii) in the case of each other
Serviced
Companion Loan that is an asset of a securitization, the earlier of
(A) the
Master Servicer Remittance Date and (B) the Business Day prior to
the date that
is the equivalent to the "Master Servicer Remittance Date" in
such
securitization but in no event earlier than the first Business Day
following the
Determination Date. For the avoidance of doubt, there are no
Serviced Companion
Loans with respect to this transaction.
"Loan Combination REO Account" shall mean, with respect to each
Serviced Loan Combination the segregated account or accounts
created and
maintained by the Special Servicer pursuant to Section 3.17 on
behalf of the
Certificateholders and the related Companion Noteholders, which
shall be
entitled "CWCapital Asset Management LLC, as Special Servicer, in
trust for
Wells Fargo Bank, N.A., as Trustee, in trust for the registered
holders of
COBALT CMBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through
Certificates, Series 2006-C1," and for [NAMES OF COMPANION LOAN
NOTEHOLDERS], as
their interests may appear." For the avoidance of doubt, there are
no Serviced
Loan Combinations with respect to this transaction.
"Loan Combination REO Property" shall mean the Loan Combination
Mortgaged Property, if such Mortgaged Property becomes an REO
Property
hereunder.
"Loan Combination Servicing Reports" shall mean, with respect to
any
Serviced Loan Combination, each of the CMSA Delinquent Loan Status
Report, CMSA
Historical Loan Modification and Corrected Mortgage Loan Report,
CMSA REO Status
Report, Loan Payoff Notification Report, CMSA Loan Periodic Update
File, CMSA
Property File, CMSA Loan Level Reserve/LOC Report, CMSA Financial
File, CMSA
Loan Setup File, CMSA Servicer Watch List, CMSA Operating Statement
Analysis
Report, CMSA NOI Adjustment Worksheet and CMSA Comparative
Financial Status
Report. For the avoidance of doubt, there are no Serviced Loan
Combinations with
respect to this transaction.
"Loan Combination Trust Mortgage Loan" shall mean, with respect
to
any Loan Combination, the portion of such Loan Combination that is
a Mortgage
Loan in the Trust.
"Loan REMIC" shall have the meaning assigned thereto in the
preliminary statement hereto.
"Loan REMIC Balance" shall mean, with respect to each Loan
REMIC
Regular Interest, as of the Cut-off Date, an amount equal to the
loan balance of
the 350 Long Beach Mortgage Loan or The Shoppes on Shugart Shopping
Center
Mortgage Loan, as applicable, as of the Cut-off Date, reduced by
the amount of
principal distributions thereon and Realized Losses allocable
thereto in all
prior periods.
"Loan REMIC Distribution Account" shall mean each of the two
sub-accounts of the Distribution Account and maintained by the
Trustee pursuant
to Section 3.04(h).
"Loan REMIC Interests" shall mean the Loan REMIC Regular
Interests
and the Loan REMIC Residual Interests.
"Loan REMIC Loan" shall mean the 350 Long Beach Mortgage Loan or
The
Shoppes on Shugart Shopping Center Mortgage Loan.
"Loan REMIC Regular Interest" shall have the meaning assigned
thereto in the Preliminary Statement hereto.
"Loan REMIC Residual Interest" shall have the meaning assigned
thereto in the Preliminary Statement hereto.
"Lockout Period" shall mean, with respect to any Mortgage Loan
that
prohibits the Mortgagor from prepaying such Mortgage Loan until a
date specified
in the related Mortgage Note or other Mortgage Loan document, the
period from
the Closing Date until such specified date.
"Loss Reimbursement Amount" shall mean:
(a) with
respect to any Class of Principal Balance Certificates, for
any
Distribution Date, the total amount of all Unfunded Principal
Balance
Reductions, if any, incurred by (but not reimbursed to) the Holders
of
such Class
of Certificates on all prior Distribution Dates, if any;
(b) with respect to any Lower-Tier Regular Interest, for any
Distribution Date, the total amount of all Unfunded Principal
Balance
Reductions, if any, incurred by (but not reimbursed to) the
Lower-Tier
REMIC with
respect to such Lower-Tier Regular Interest on all prior
Distribution Dates, if any; and
(c) with respect to any Loan REMIC Regular Interest, for any
Distribution Date, the total amount of all Unfunded Principal
Balance
Reductions
of the related Loan REMIC Loan.
For purposes of this definition: (x) any increase in the Class
Principal Balance of any Class of Principal Balance Certificates
pursuant to
Section 4.05(a) shall constitute a reimbursement to the Holders of
such Class of
Principal Balance Certificates of any related Unfunded Principal
Balance
Reductions; and (y) any increase in the Lower-Tier Interest
Principal Balance of
any Lower-Tier Regular Interest pursuant to Section 4.05(c) shall
constitute a
reimbursement to the Lower-Tier REMIC with respect to any related
Unfunded
Principal Balance Reductions relating to such Lower-Tier Regular
Interest.
"Lower-Tier Distribution Account" shall mean the sub-account
deemed
to be a part of the Distribution Account and maintained by the
Trustee pursuant
to Section 3.04(b).
"Lower-Tier Distribution Amount" shall mean the aggregate of
amounts
distributable to the Uncertificated Lower-Tier Interests pursuant
to Section
4.01(i).
"Lower-Tier Interest Principal Reinstatement Amount" shall have
the
meaning assigned thereto pursuant to Section 4.05(c).
"Lower-Tier REMIC" shall mean the segregated pool of assets
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) the Mortgage Loans as from time to time are subject to this
Agreement
(other than the Loan REMIC Loans) and all payments under and
proceeds of such
Mortgage Loans received by the Trust after the Closing Date (other
than
scheduled payments of interest and principal due on or before the
Cut-off Date,
and other than Post-ARD Additional Interest Received in respect of
any ARD Loan
after its Anticipated Repayment Date and any The Shoppes on Shugart
Shopping
Center Yield Supplement Amount), together with all documents
included in the
related Mortgage Files; (ii) any Serviced REO Properties as from
time to time
are subject to this Agreement (other than with respect to the Loan
REMIC Loans)
and all income and proceeds therefrom (to the extent not allocable
to a
Companion Loan) and a beneficial interest in the applicable portion
of any REO
Property under the applicable Lead PSA for the Non-Serviced Trust
Loans; (iii)
such funds or assets as from time to time are deposited in the Pool
Custodial
Account (other than with respect to the Loan REMIC Loans), each
Loan Combination
Custodial Account (to the extent not related to the Companion
Loans), the
Lower-Tier Distribution Account, the Class AMP-E Sub-Account, the
Class AMP-E
Interest Reserve Account, the Interest Reserve Account and, if
established, the
Pool REO Account and each Loan Combination REO Account (to the
extent not
related to the Companion Loans); and (iv) the Loan REMIC Regular
Interests and
proceeds thereof.
"Master Servicer" shall mean Wachovia Bank, National Association
in
its capacity as master servicer hereunder, or any successor master
servicer
appointed as herein provided.
"Master Servicer Class AMP-E Remittance Amount" shall mean,
with
respect to any Master Servicer Remittance Date, an amount equal to:
(a) the
aggregate amount of all payments and other collections on or with
respect to the
Ala Moana Portfolio Non-Pooled Trust Loan that (A) were received as
of 12:00
noon (New York City time) on the Master Servicer Remittance Date
and (B) are on
deposit or are required to be on deposit in the Class AMP-E
Custodial Account as
of 12:00 noon (New York City time) on such Master Servicer
Remittance Date; net
of (b) the portion of the aggregate amount described in clause (a)
of this
definition that represents one or more of the following--(i)
Monthly Payments
that are due on a Due Date following the end of the related
Collection Period,
(ii) any amount payable or reimbursable to any Person from the
Class AMP-E
Custodial Account pursuant to clauses (ii) through (xviii) of
Section 3.05(a),
(iii) any Excess Liquidation Proceeds with respect to the Ala Moana
Portfolio
Non-Pooled Trust Loan and (iv) any amounts deposited in the Class
AMP-E
Custodial Account in error.
"Master Servicer Remittance Amount" shall mean, with respect to
any
Master Servicer Remittance Date, an amount equal to: (a) the
aggregate amount of
all payments and other collections on or with respect to the
Serviced Loans and
the Non-Serviced Trust Loans and any related REO Properties
(excluding any such
amounts that relate to the Ala Moana Portfolio Non-Pooled Trust
Loan, but
including, with respect to the other Non-Serviced Trust Loans,
payment remitted
by, or advances made by, the applicable Lead Master Servicer) that
(A) were
Received as of the close of business on the immediately preceding
Determination
Date (or in the case of the Non-Serviced Trust Loans, as of 12:00
noon (New York
City time) on the Master Servicer Remittance Date and (B) are on
deposit or are
required to be on deposit in the Pool Custodial Account as of 12:00
noon (New
York City time) on such Master Servicer Remittance Date, including
any such
payments and other collections transferred to the Pool Custodial
Account from
the Pool REO Account (if established); net of (b) the portion of
the aggregate
amount described in clause (a) of this definition that represents
one or more of
the following--(i) Monthly Payments that are due on a Due Date
following the end
of the related Collection Period, (ii) any amount payable or
reimbursable to any
Person from the Pool Custodial Account pursuant to clauses (ii)
through (xviii)
of Section 3.05(a), (iii) any Excess Liquidation Proceeds and (iv)
any amounts
deposited in the Pool Custodial Account in error.
"Master Servicer Remittance Date" shall mean the date each
month,
commencing in January 2007, on which, among other things, the
Master Servicer is
required to (i) make P&I Advances and (ii) transfer the Master
Servicer
Remittance Amount, the Master Servicer Class AMP-E Remittance
Amount and any
Excess Liquidation Proceeds to the Trustee, which date shall be the
Business Day
immediately preceding each Distribution Date by 1 p.m. (New York
City time).
"Master Servicing Fee" shall mean, with respect to each
Serviced
Loan and the Non-Serviced Trust Loans (and, in each case, any
successor REO Loan
with respect thereto), the fee designated as such and payable to
the Master
Servicer pursuant to Section 3.11(a). The Master Servicing Fee
includes any
servicing fees payable to any third-party servicers that
sub-service or primary
service the loans on behalf of the Master Servicer, but does not
include any
primary servicing fee payable with respect to a Non-Serviced Trust
Loan to the
applicable Lead Master Servicer under the applicable Lead PSA.
Solely for
federal income taxes purposes, in the case of each Loan REMIC Loan,
the Master
Servicing Fee shall be deemed to be paid by the Lower-Tier REMIC on
the related
Loan REMIC Balance.
"Master Servicing Fee Rate" shall mean, with respect to each
Serviced Loan and the Non-Serviced Trust Loans and any successor
REO Loan, the
rate per annum specified as such on the Mortgage Loan Schedule.
With respect to
each Loan Combination, the Master Servicing Fee Rate for the
related Mortgage
Loan may be different than the Master Servicing Fee Rate for the
related
Companion Loan, as more particularly set forth on the Mortgage Loan
Schedule.
Solely for federal income taxes purposes, in the case of each Loan
REMIC Loan,
"Mortgage Loan" shall refer to the related Loan REMIC Regular
Interest for
purposes of this definition, as the context requires.
"Material Breach" shall have the meaning assigned thereto in
Section
2.03(a).
"Material Document Defect" shall have the meaning assigned
thereto
in Section 2.03(a).
"Modified Loan" shall mean any Serviced Loan as to which any
Servicing Transfer Event has occurred and which has been modified
by the Special
Servicer pursuant to Section 3.21 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest
due thereon (other than, or in addition to, bringing Monthly
Payments
current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related Mortgage
Loan
documents,
results in a release of the lien of the related Mortgage on any
material
portion of the related Mortgaged Property without a
corresponding
Principal
Prepayment in an amount, or the delivery of substitute real
property
collateral with a fair market value (as is), that is not less
than the
fair market value (as is) of the property to be released, as
determined
by an appraisal delivered to the Special Servicer (at the
expense of
the related Mortgagor and upon which the Special Servicer may
conclusively rely); or
(c) in the reasonable, good faith judgment of the Special
Servicer,
otherwise
materially impairs the security for such Mortgage Loan or
materially
reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment" shall mean, with respect to any Mortgage Loan,
as
of any Due Date, the scheduled monthly debt service payment (or, in
the case of
any ARD Loan after its Anticipated Repayment Date, the monthly debt
service
payment required to be paid on a current basis) on such Mortgage
Loan 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, extension, waiver or
amendment granted
or agreed to by the Special Servicer pursuant to Section 3.21),
including any
Balloon Payment payable in respect of such Mortgage Loan on such
Due Date;
provided that the Monthly Payment due in respect of any Mortgage
Loan shall not
include Default Interest; provided, further, that the Monthly
Payment due in
respect of any ARD Loan after its Anticipated Repayment Date shall
not include
Post-ARD Additional Interest.
"Mortgage" shall mean, with respect to any Mortgage Loan, the
mortgage, deed of trust, deed to secure debt or similar instrument
that secures
the related Mortgage Note and creates a lien on the related
Mortgaged Property.
"Mortgage File" shall mean:
(a) with respect to any Mortgage Loan and, in the case of any
Loan
Combination, any Companion Loan, the following documents
collectively
(which, in
the case of a Loan Combination, except for the Mortgage Note
referred to in clause
(i) and clause (vi) of this definition, relates to
an entire
Loan Combination):
(i) (A) the original executed Mortgage Note for such Mortgage
Loan, endorsed (without recourse, representation or warranty,
express or implied) to the order of "Wells Fargo Bank, N.A., as
trustee for the registered holders of COBALT CMBS Commercial
Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through
Certificates, Series 2006-C1" or in blank, and further showing
a
complete, unbroken chain of endorsement from the originator (if
such
originator is not the Mortgage Loan Seller) (or, alternatively,
if
the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note), and
(B)
in the case of a Loan Combination, a copy of the executed
Mortgage
Note for the related Companion Loan;
(ii) an original or certified copy of the Mortgage, together
with originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of
recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage),
together
with originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of
recording indicated thereon;
(iv)
an original executed assignment, in recordable form
(except for recording information not yet available if the
instrument being assigned has not been returned from the
applicable
recording office), of (A) the Mortgage and (B) any related
Assignment of Leases (if such item is a document separate from
the
Mortgage), in favor of "Wells Fargo Bank, N.A., in its capacity
as
trustee for the registered holders of COBALT CMBS Commercial
Mortgage Trust 2006-C1, Commercial Mortgage Pass-Through
Certificates, Series 2006-C1" (or, in each case, a copy
thereof,
certified to be the copy of such assignment submitted for
recording);
(v) an original or copy of the assignment of all unrecorded
documents relating to the Mortgage Loan, in favor of "Wells
Fargo
Bank, N.A., as trustee for the registered holders of COBALT
CMBS
Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through
Certificates, Series 2006-C1";
(vi) originals or copies of final written modification
agreements in those instances where the terms or provisions of
the
Mortgage Note for such Mortgage Loan (or, if applicable, a
Mortgage
Note of a Loan Combination) or the related Mortgage have been
modified as to a monetary term or other material term thereof,
in
each case (unless the particular item has not been returned from
the
applicable recording office) with evidence of recording
indicated
thereon if the instrument being modified is a recordable
document;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such
Mortgage
Loan (or, if such policy has not been issued, a "marked-up" pro
forma title policy marked as binding and countersigned by the
title
insurer or its authorized agent, or an irrevocable, binding
commitment to issue such title insurance policy);
(viii) filed copies (with evidence of filing) of any prior
effective 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 applicable Mortgage Loan Seller had
possession of such UCC Financing Statements prior to the
Closing
Date) and an original UCC-2 or UCC-3 assignment thereof, as
appropriate, in form suitable for filing, in favor of "Wells
Fargo
Bank, N.A., in its capacity as trustee for the registered holders
of
COBALT CMBS Commercial Mortgage Trust 2006-C1, Commercial
Mortgage
Pass-Through Certificates, Series 2006-C1";
(ix) an original or copy of the related Ground Lease relating
to such Mortgage Loan, if any;
(x) an original or copy of the related loan agreement, if any;
(xi) an original of the related guaranty of payment under, or
an original of the letter of credit (which original shall be
delivered by the Trustee to the Master Servicer with a copy
retained) in connection with, such Mortgage Loan, if any;
(xii) an original or copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xiii) an original or copy of the environmental indemnity from
the related Mortgagor, if any;
(xiv) an original or copy of the related security agreement
(if such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments
thereof;
(xv) an original assignment of the related security agreement
(if such item is a document separate from the Mortgage and if
such
item is not included in the assignment described in clause (v)),
in
favor of "Wells Fargo Bank, N.A., in its capacity as trustee for
the
registered holders of COBALT CMBS Commercial Mortgage Trust
2006-C1,
Commercial Mortgage Pass-Through Certificates, Series 2006-C1";
(xvi) in the case of a Loan Combination, a copy of the related
Co-Lender Agreement;
(xvii) in the case of any Mortgage Loan as to which there
exists a related mezzanine loan, the original or a copy of the
related intercreditor agreement;
(xviii) an original or copy of any related Environmental
Insurance Policy; and
(xix) with respect to hospitality properties, a signed copy of
the franchise agreement (if any), franchisor comfort letter (if
any)
and transfer documents for such comfort letter;
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 a Custodian on its behalf for
documents
described in clauses (a)(vi) and (a)(ix) through (a)(xix) of this
definition,
shall be deemed to include such documents only to the extent the
Trustee or a
Custodian on its behalf has actual knowledge of their existence;
provided,
further, with respect to the Non-Serviced Trust Loans, the
"Mortgage File" shall
consist solely of the original Mortgage Note (and all intervening
endorsements)
referred to clause (a)(i) of this definition and copies of the
"mortgage file"
delivered under the applicable Lead PSA.
"Mortgage Loan" shall mean each of the mortgage loans 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(s), Mortgage
and other security documents contained in the related Mortgage File
or otherwise
held on behalf of the Trust. The term "Mortgage Loan" includes the
"Loan
Combination Trust Mortgage Loan" portion of each Loan Combination,
but does not
include any Companion Loans.
"Mortgage Loan Payoff Notification Report" shall mean a report
containing substantially the information described in Exhibit E
attached hereto,
and setting forth for each Mortgage Loan as to which written notice
of
anticipated payoff has been received by the Master Servicer as of
the
Determination Date preceding the delivery of such report, among
other things,
the mortgage loan number, the property name, the ending scheduled
loan balance
for the Collection Period ending on such Determination Date, the
expected date
of payment, the expected related Distribution Date and the
estimated amount of
the Yield Maintenance Charge or Prepayment Premium due (if
any).
"Mortgage Loan Purchase Agreement" shall mean the Mortgage Loan
Purchase Agreement dated as of December 1, 2006 and entered into by
and between
the Depositor and the applicable Mortgage Loan Seller.
"Mortgage Loan Schedule" shall mean the list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of the Trust
Fund,
attached hereto as Schedule I (and also delivered to the Trustee
and the Master
Servicer 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, state and zip code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due
Date following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate, and (B) Master
Servicing Fee Rate (separately identifying any primary servicing
fee
rate or sub-servicing fee rate included in the Master Servicing
Fee
Rate, and in the case of each Loan Combination, separately
identifying the Master Servicing Fee Rate applicable to each Loan
in
such Loan Combination);
(x) whether the Mortgage Loan is secured by a Ground Lease;
(xi) the Mortgage Loan Seller(s);
(xii) the originator;
(xiii) whether the related Mortgage Loan is a Defeasance Loan;
(xiv) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it
belongs; and
(xv) whether there is a letter of credit in place for the
related Mortgage Loan.
(xvi) whether such Mortgage Loan is an ARD Loan and, if so,
the Anticipated
Repayment Date and Additional Interest Rate; and
(xvii) whether such Mortgage Loan is part of a Serviced Loan
Combination, in which case the information required by clauses
(iii), (iv), (v), (vi), (vii), (viii) and (ix)(B) shall also be
set
forth for the Companion Loan in such Loan Combination.
"Mortgage Loan Sellers" shall mean each of CWCapital LLC,
Wachovia
Bank, National Association, Citigroup Global Markets Realty Corp.,
Artesia
Mortgage Capital Corporation and German American Capital
Corporation.
"Mortgage Note" shall mean the original executed note or notes
evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with
any rider, addendum or amendment thereto, or any renewal,
substitution or
replacement of such note or notes.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loans, in each case other than the Ala Moana
Portfolio
Non-Pooled Trust Loan, collectively. The Mortgage Pool does not
include any
Companion Loans or any related REO Loan or the Ala Moana Portfolio
Non-Pooled
Trust Loan or any related REO Loan.
"Mortgage Pool Data Update Report" shall mean, with respect to
any
Distribution Date, a report (which may be included as part of the
Distribution
Date Statement), prepared by the Trustee, containing information
regarding the
Mortgage Loans as of the end of the related Collection Period,
which report
shall contain substantially the categories of information regarding
the Mortgage
Loans set forth on Annex A to the Prospectus Supplement
(calculated, where
applicable, on the basis of the most recent relevant information
provided by the
Mortgagors to the Master Servicer or the Special Servicer, as the
case may be,
and by the Master Servicer or the Special Servicer, as the case may
be, to the
Trustee), and which information shall be presented in tabular
format
substantially similar to the format utilized on such annex and
shall also
include a loan-by-loan listing (in prospectus number order) showing
loan number,
property type, location, ending scheduled balance, Mortgage Rate,
paid-through
date, maturity date, gross interest portion of the Monthly Payment,
principal
portion of the Monthly Payment, and any Prepayment Premium or Yield
Maintenance
Charge received.
"Mortgage Rate" shall mean, with respect to each Mortgage Loan
(and
any successor REO Loan with respect thereto) or Loan REMIC Regular
Interest, the
related annualized 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, as such rate may be
modified in
accordance with Section 3.21 or in connection with a bankruptcy,
insolvency or
similar proceeding involving the related Mortgagor. In the case of
any ARD Loan,
the related Mortgage Rate shall increase in accordance with the
related Mortgage
Note if the particular Mortgage Loan is not paid in full by its
Anticipated
Repayment Date. Notwithstanding the foregoing, if any Mortgage Loan
does not
accrue interest on the basis of a 360-day year consisting of twelve
30-day
months, then, solely for purposes of calculating Pass-Through Rates
and the
Class AMP-E Adjusted Net Mortgage Rate, the Mortgage Rate of such
Mortgage Loan
for any one-month period preceding a related Due Date shall be the
annualized
rate at which interest would have to accrue in respect of such
Mortgage Loan on
the basis of a 360-day year consisting of twelve 30-day months in
order to
produce the aggregate amount of interest actually accrued
(exclusive of Default
Interest) in respect of such Mortgage Loan during such one-month
period at the
related Mortgage Rate; provided, however, that with respect to any
Interest
Reserve Mortgage Loan or the Ala Moana Portfolio Non-Pooled Trust
Loan, the
Mortgage Rate for (A) the one-month period preceding the Due Dates
that occur in
January and February in any year that is not a leap year or the
one-month period
preceding the Due Date that occurs in February in any year that is
a leap year
(in either case, unless the related Distribution Date is the Final
Distribution
Date) will be determined exclusive of the Interest Reserve Amount
or Class AMP-E
Interest Reserve Amount, as applicable, withheld from that month,
and (B) the
one-month period preceding the Due Date in March (or February, if
the related
Distribution Date is Final Distribution Date) will be determined
inclusive of
the Interest Reserve Amount(s) or Class AMP-E Interest Reserve
Amount(s), as
applicable, withheld from the immediately preceding February and,
if applicable,
January.
"Mortgaged Property" shall mean the real property (together with
all
improvements and fixtures thereon) subject to the lien of a
Mortgage.
"Mortgagor" shall mean, individually and collectively, as the
context may require, the obligor or obligors under a Mortgage Loan,
including
any Person that has not signed the related Mortgage Note but owns
an interest in
the related Mortgaged Property, which interest has been encumbered
to secure
such Mortgage Loan.
"Mortgagor Affiliate Holder" shall mean any Certificateholder
or
Companion Loan Noteholder that is a Mortgagor or an Affiliate of
the Mortgagor
(including any Certificateholder or its Affiliate or any Companion
Loan
Noteholder or its Affiliate, in each case, that was a lender of the
Mortgagor
and has foreclosed on the equity interests in the Mortgagor or
any
Certificateholder or Companion Loan Noteholder that acquires,
directly or
through an Affiliate, a direct equity interest in the Mortgaged
Property).
"Net Aggregate Prepayment Interest Shortfall" shall mean, with
respect to any Distribution Date and any Serviced Loan, the amount,
if any, by
which (a) the aggregate of all Prepayment Interest Shortfalls
incurred in
connection with the receipt of Principal Prepayments and/or,
insofar as they
result from the application of Insurance Proceeds and/or
Condemnation Proceeds,
other early recoveries of principal Received on such Mortgage Loans
(including
Specially Serviced Mortgage Loans) during the related Collection
Period, exceeds
(b) the aggregate amount deposited by the Master Servicer in the
Distribution
Account for such Distribution Date pursuant to Section 3.20(a) in
connection
with such Prepayment Interest Shortfalls.
"Net AMP-E Prepayment Interest Shortfall" shall mean, 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 and/or, insofar as they result from the
application of
Insurance Proceeds and/or Condemnation Proceeds, other early
recoveries of
principal Received on the Ala Moana Portfolio Non-Pooled Trust Loan
(including
if such Loan is a Specially Serviced Mortgage Loan) during the
related
Collection Period, exceeds (b) the aggregate amount deposited by
the Master
Servicer in the Class AMP-E Sub-Account for such Distribution Date
pursuant to
Section 3.19(a) in connection with such Prepayment Interest
Shortfalls.
"Net Default Charges" shall have the meaning assigned thereto
in
Section 3.27(a).
"Net Investment Earnings" shall mean, with respect to any
Investment
Account for any Collection Period, the amount, if any, by which the
aggregate of
all interest and other income realized during such Collection
Period on funds
held in such Investment Account (exclusive, in the case of a
Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion
of such
interest or other income payable to a Mortgagor in accordance with
the related
Mortgage Loan documents and applicable law), exceeds the aggregate
of all
losses, if any, incurred during such Collection Period in
connection with the
investment of such funds in accordance with Section 3.06
(exclusive, in the case
of a Servicing Account, a Reserve Account or the Defeasance Deposit
Account, of
any portion of such losses that were incurred in connection with
investments
made for the benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any
Investment
Account for any Collection Period, the amount by which the
aggregate of all
losses, if any, incurred during such Collection Period in
connection with the
investment of funds held in such Investment Account in accordance
with Section
3.06 (exclusive, in the case of a Servicing Account, a Reserve
Account or the
Defeasance Deposit Account, of any portion of such losses that were
incurred in
connection with investments made for the benefit of a Mortgagor),
exceeds the
aggregate of all interest and other income realized during such
Collection
Period on such funds (exclusive, in the case of a Servicing
Account, a Reserve
Account or the Defeasance Deposit Account, of any portion of such
interest or
other income payable to a Mortgagor in accordance with the related
Mortgage Loan
documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of
all
Liquidation Proceeds received with respect to any Specially
Serviced Mortgage
Loan or REO Property, over the amount of all Liquidation Expenses
incurred with
respect thereto.
"Net Mortgage Rate" shall mean with respect to any Mortgage Loan
(or
its related Loan REMIC Regular Interest) or REO Loan, as of any
date of
determination, a rate per annum equal to the related Mortgage Rate
then in
effect (excluding, if applicable, the portion thereof comprised of
the
Additional Interest Rate following the related Anticipated
Repayment Date),
minus the Administrative Cost Rate; provided, however, that for
purposes of
calculating Pass-Through Rates, the Net Mortgage Rate for any
Mortgage Loan (or
related Loan REMIC Regular Interest) will be determined without
regard to any
modification, waiver or amendment of the terms of such Mortgage
Loan, whether
agreed to by the Master Servicer or Special Servicer or resulting
from a
bankruptcy, insolvency or similar proceeding involving the
Mortgagor.
"Net Prepayment Consideration" shall mean the Prepayment
Consideration Received with respect to any Mortgage Loan or REO
Mortgage Loan,
net of any Workout Fee or Liquidation Fee payable therefrom.
"New Lease" shall mean any lease of REO Property (other than
with
respect to a Non-Serviced Trust Loan) entered into at the direction
of the
Special Servicer, including any lease renewed, modified or extended
on behalf of
the Trustee and, in the case of any Serviced Loan Combination, the
related
Companion Loan Noteholder, if the Trust has the right to
renegotiate the terms
of such lease.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I
Advance
or Nonrecoverable Servicing Advance. Workout-Delayed Reimbursement
Amounts shall
constitute a Nonrecoverable Advance only when the Person making
such
determination or the Special Servicer 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 that such
Workout-Delayed
Reimbursement Amounts, would not ultimately be recoverable from
Late Collections
or any other recovery on or in respect of the related Mortgage
Loan, Loan
Combination or REO Loan, or (b) has determined that such
Workout-Delayed
Reimbursement Amount, along with any other Workout-Delayed
Reimbursement Amounts
(that have not been reimbursed to the party that made such Advance)
or
unreimbursed Nonrecoverable Advances, would not be ultimately
recoverable from
the principal portion of future general collections on the Mortgage
Loans and
REO Properties. Any determination as to whether an Advance is or,
if made, would
be a Nonrecoverable Advance, if made by the Master Servicer or the
Special
Servicer shall be made in accordance with the Servicing Standard
and if made by
the Trustee shall be made in such party's reasonable, good faith
judgment. The
Master Servicer and the Trustee shall conclusively rely on and be
bound by the
Special Servicer's determination that a P&I Advance or
Servicing Advance is
nonrecoverable; provided, however, that in the absence of such
determination by
the Special Servicer, the Master Servicer and the Trustee will be
entitled to
make their own determination that a P&I Advance or Servicing
Advance is
nonrecoverable, and in no event shall a determination by the
Special Servicer
that a previously made or proposed P&I Advance or Servicing
Advance would be
recoverable be binding on the Master Servicer or the Trustee.
"Nonrecoverable P&I Advance" shall mean with respect to any
Mortgage
Loan, any P&I Advance previously made or proposed to be made in
respect of such
Mortgage Loan or a related REO Loan by the Master Servicer or the
Trustee, which
P&I Advance such party or the Special Servicer has determined
will not be
ultimately recoverable from late payments, Insurance Proceeds,
Condemnation
Proceeds or Liquidation Proceeds, or any other recovery on or in
respect of such
Mortgage Loan, Loan Combination or REO Loan, as the case may be.
Any
determination as to whether a P&I Advance is or, if made, would
be a
Nonrecoverable P&I Advance, if made by the Master Servicer or
the Special
Servicer shall be made in accordance with the Servicing Standard
and if made by
the Trustee shall be made in such party's reasonable, good faith
judgment.
"Nonrecoverable Servicing Advance" shall mean any Servicing
Advance
previously made or proposed to be made in respect of a Serviced
Loan or Serviced
REO Property by the Master Servicer, the Special Servicer or the
Trustee, which
Servicing Advance such party or the Special Servicer has determined
will not be
ultimately recoverable from late payments, Insurance Proceeds,
Condemnation
Proceeds, Liquidation Proceeds, or any other recovery on or in
respect of such
Mortgage Loan or REO Property, as the case may be. Any Servicing
Advance that is
(i) not required to be repaid by the related Mortgagor under the
terms of the
related Mortgage Loan documents or (ii) cannot be collected from
the Mortgagor
under applicable law shall be deemed to be a Nonrecoverable Advance
for purposes
of the Master Servicer's, the Special Servicer's, the Trustee's
entitlement to
reimbursement for such Advance. Any determination as to whether a
Servicing
Advance is or, if made, would be a Nonrecoverable Servicing
Advance, if made by
the Master Servicer or the Special Servicer shall be made in
accordance with the
Servicing Standard and if made by the Trustee shall be made in such
party's
reasonable, good faith judgment.
"Non-Registered Certificate" shall mean any Certificate that has
not
been the subject of registration under the Securities Act. As of
the Closing
Date, the Class E, Class F, Class G, Class H, Class J, Class K,
Class L, Class
M, Class N, Class O, Class P, Class AMP-E1, Class AMP-E2, Class R-I
and Class
R-II Certificates are Non-Registered Certificates.
"Non-Serviced Companion Loan" shall mean each of (i) the Ala
Moana
Portfolio Pari Passu Companion Loans and the Ala Moana Portfolio
Subordinate
Companion Loans, (ii) the ShopKo Portfolio Pari Passu Companion
Loans, (iii) the
311 South Wacker Pari Passu Companion Loan and (iv) the
Fortress/Ryan's
Portfolio Pari Passu Companion Loan.
"Non-Serviced Loan Combination" shall mean, individually or
collectively, as applicable, (i) the Ala Moana Portfolio Loan
Combination, (ii)
the ShopKo Portfolio Loan Combination, (iii) the 311 South Wacker
Loan
Combination and (iv) the Fortress/Ryan's Portfolio Loan
Combination.
"Non-Serviced Trust Loan" shall mean each of (i) the Ala Moana
Portfolio Trust Loan and, (ii) the ShopKo Portfolio Trust Loan,
(iii) the 311
South Wacker Trust Loan and (iv) the Fortress/Ryan's Portfolio
Trust Loan.
"Non-United States Tax Person" shall mean any Person other than
a
United States Tax Person.
"Notional Amount" means, as of any date of determination: (i)
with
respect to all of the Class IO Certificates as a Class, the Class
IO Notional
Amount as of such date of determination; and (ii) with respect to
any Class IO
Certificate, the product of the Percentage Interest evidenced by
such
Certificate and the Class IO Notional Amount as of such date of
determination.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer, the Special Servicer or
Additional
Servicer, as the case may be, or by a Responsible Officer of the
Trustee, and
shall mean with respect to any other Person, a certificate signed
by any of the
Chairman of the Board, the Vice Chairman of the Board, the
President, any Vice
President or Managing Director, an Assistant Vice President or any
other
authorized officer (however denominated) or another officer
customarily
performing functions similar to those performed by any of the above
designated
officers or, with respect to a particular matter, any other officer
to whom such
matter is referred because of such officer's knowledge of and
familiarity with
the particular subject.
"Opinion of Counsel" shall mean a written opinion of counsel,
who
may, without limitation, be salaried counsel for the Depositor, the
Master
Servicer or the Special Servicer, acceptable in form and delivered
to the
Trustee or any other specified Person, as the case may be, except
that any
opinion of counsel relating to (a) the qualification of either Loan
REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC, (b) compliance
with the
REMIC Provisions, (c) whether any act or event would cause an
Adverse REMIC
Event, (d) qualification of the Grantor Trust as a grantor trust or
(e) the
resignation of the Master Servicer or the Special Servicer pursuant
to this
Agreement, must be a written opinion of Independent counsel
acceptable to and
delivered to the Trustee or any other specified Person, as the case
may be.
"Original Lower-Tier Principal Amount" shall mean the amount
set
forth under the column bearing such title in the table in the
Preliminary
Statement hereto.
"Original Class Principal Balance" shall mean, with respect to
any
Class of Principal Balance Certificates, the initial Class
Principal Balance
thereof as of the Closing Date, in each case as specified in the
Preliminary
Statement.
"OTS" shall mean the Office of Thrift Supervision or any
successor
thereto.
"Ownership Interest" shall mean, 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.
"Pari Passu Companion Loan" shall have the meaning assigned
thereto
in the Preliminary Statement.
"P&I Advance" shall mean, as to any Mortgage Loan (including
the Ala
Moana Portfolio Non-Pooled Trust Loan) or a related REO Loan, any
advance made
by the Master Servicer or the Trustee pursuant to Section 4.03 or
4.03A.
"Pass-Through Rate" shall mean:
(b) with respect to the Class A-1 Certificates for any Interest
Accrual
Period, 5.043% per annum;
(c) with respect to the Class A-2 Certificates for any Interest
Accrual
Period, 5.174% per annum;
(d) with respect to the Class A-AB Certificates for any
Interest
Accrual
Period, an annual rate equal to 5.223% per annum;
(e) with respect to the Class A-3 Certificates for any Interest
Accrual
Period, 5.311% per annum;
(f) with respect to the Class A-4 Certificates for any Interest
Accrual
Period, an annual rate equal to 5.223% per annum;
(g) with respect to the Class A-1A Certificates for any
Interest
Accrual
Period, an annual rate equal to 5.199% per annum;
(h) with respect to the Class A-M Certificates for any Interest
Accrual
Period, an annual rate equal to 5.254% per annum;
(i) with respect to the Class A-J Certificates for any Interest
Accrual
Period, an annual rate equal to 5.289% per annum;
(j)
with respect to the Class B Certificates for any Interest
Accrual
Period, an annual rate equal to 5.359% per annum;
(k) with respect to the Class C Certificates for any Interest
Accrual
Period, an annual rate equal to 5.398% per annum;
(l) with respect to the Class D Certificates for any Interest
Accrual
Period, an annual rate equal to 5.438% per annum;
(m) with respect to the Class E Certificates for any Interest
Accrual
Period, an annual rate equal to 5.497% per annum;
(n) with respect to the Class F Certificates for any Interest
Accrual
Period, an annual rate equal to the lesser of (A) 5.665% per
annum
and (B)
the Weighted Average Net Mortgage Rate;
(o)
with respect to the Class G Certificates for any Interest
Accrual
Period, an annual rate equal to the lesser of (A) 5.763% per
annum
and (B)
the Weighted Average Net Mortgage Rate;
(p) with respect to the Class H Certificates for any Interest
Accrual
Period, an annual rate equal to the lesser of (A) 5.961% per
annum
and (B)
the Weighted Average Net Mortgage Rate;
(q) with respect to each of the Class J, Class K, Class L, Class
M,
Class N,
Class O and Class P Certificates for any Interest Accrual
Period,
an annual
rate equal to 4.979% per annum;
(r) with respect to the Class AMP-E1 Certificates for any
Interest
Accrual
Period, an annual rate equal to the Class AMP-E Adjusted Net
Mortgage
Rate;
(s) with respect to the Class AMP-E2 Certificates for any
Interest
Accrual
Period, an annual rate equal to the Class AMP-E Adjusted Net
Mortgage
Rate;
(t) with respect to the Class IO Certificates for any Interest
Accrual
Period, an annual rate equal to the weighted average of the
Class
IO Strip
Rates for the 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); and
(u) with respect to each Loan REMIC Regular Interest, the
Mortgage
Rate of
the related Loan REMIC Loan.
"PCAOB" means the Public Company Accounting Oversight Board.
"Percentage Interest" shall mean: (a) with respect to any
Regular
Interest 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 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
initial Notional
Amount, as the case may be, of the relevant Class; and (b) with
respect to
Residual Interest Certificate, the percentage interest in
distributions to be
made with respect to the relevant Class, as stated on the face of
such
Certificate.
"Performance Certification" shall have the meaning assigned to
such
term in Section 11.06.
"Performing Party" shall have the meaning assigned to such term
in
Section 11.06.
"Performing Serviced Loan" shall mean any Serviced Loan as to
which
a Servicing Transfer Event has never occurred and any Corrected
Mortgage Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto
in
Section 2.04(b)(viii).
"Permitted Investments" shall mean 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 that 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. 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) of this definition (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 category of each of
S&P
and Fitch (or, in the case of any Rating Agency, such lower
rating
as will not result in an Adverse Rating Event with respect to
any
Class of Certificates or Companion Loan Securities, as evidenced
in
writing by such Rating Agency). In addition, any such item 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;
(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 category
of
each of S&P and Fitch (or, in the case of any Rating Agency,
such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates or Companion Loan
Securities,
as evidenced in writing by such Rating Agency). In addition,
any
such item 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;
(iv) commercial paper (having original maturities of not more
than 90 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 Fitch (or, in the case of any
Rating
Agency, such lower rating as will not result in an Adverse
Rating
Event with respect to any Class of Certificates or Companion
Loan
Securities, as evidenced in writing by such Rating Agency). In
addition, such 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 (including the Wells Fargo
Prime Investment Money Market Fund or any other money market
funds
for which the Trustee or its affiliates acts as an advisor or
manager) rated in the highest applicable rating category of each
of
S&P and Fitch, (or, in the case of any Rating Agency, such
lower
rating as will not result in an Adverse Rating Event with respect
to
any Class of Certificates or Companion Loan Securities, as
evidenced
in writing by such Rating Agency) and which seeks to maintain a
constant net asset value; and
(vi) any other obligation or security that (A) 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, and (B) constitutes a
"cash
flow investment" (within the meaning of the REMIC Provisions),
as
evidenced by an Opinion of Counsel obtained at the expense of
the
Person that wishes to include such obligation or security as a
Permitted Investment;
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; (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; and
(3) no
investment described hereunder may have a "r" highlighter or other
comparable
qualifier attached to its rating.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization,
(b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of
Counsel,
obtained at the request of the Trustee at the expense of such
Person or the
Person seeking to Transfer a Residual Interest Certificate,
supporting such
determination), the Transfer of a Residual Interest Certificate may
cause any
REMIC Pool to fail to qualify as a REMIC at any time that any
Certificate is
outstanding, (c) a Disqualified Non-United States Tax Person, (d) a
Disqualified
Partnership, or (e) a United States Tax Person with respect to whom
interest is
attributable to a foreign permanent establishment or fixed base
(within the
meaning of any applicable income tax treaty between the United
States and any
foreign jurisdiction) of such Person or any other United States Tax
Person.
"Person" shall mean 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" shall have the meaning assigned thereto in Section
5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as
to
any taxable year of each REMIC Pool, the Holder of Certificates
entitled to the
largest percentage of the Voting Rights allocated to the related
Class of
Residual Interest Certificates.
"Pool Custodial Account" shall mean 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 the
Certificateholders, which
shall be entitled "Wachovia Bank, National Association, as Master
Servicer, on
behalf of Wells Fargo Bank, N.A., as Trustee, in trust for the
registered
holders of COBALT CMBS Commercial Mortgage Trust 2006-C1,
Commercial Mortgage
Pass-Through Certificates, Series 2006-C1."
"Pool REO Account" shall mean the segregated account or
accounts
created and maintained by the Special Servicer pursuant to Section
3.17 on
behalf of the Trustee in trust for the Certificateholders, which
shall be
entitled "CWCapital Asset Management LLC, as Special Servicer, on
behalf of
Wells Fargo Bank, N.A., as Trustee, in trust for the registered
holders of
COBALT CMBS Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through
Certificates, Series 2006-C1."
"Pooled Mortgage Loans" means the Mortgage Loans other than the
Ala
Moana Portfolio Non-Pooled Trust Loan.
"Pooled REO Mortgage Loans" means the REO Mortgage Loans other
than
any REO Mortgage Loan with respect to the Ala Moana Portfolio
Non-Pooled Trust
Loan.
"Post-ARD Additional Interest" shall mean, with respect to any
ARD
Loan after its Anticipated Repayment Date, all interest accrued on
the principal
balance of any ARD Loan at the Additional Interest Rate and, if so
provided in
the related Loan documents, compounded at the related Mortgage Rate
(the payment
of which interest shall, under the terms of any ARD Loan, be
deferred until the
entire outstanding principal balance thereof has been paid). For
purposes of
this Agreement, Post-ARD Additional Interest on any ARD Loan or any
successor
REO Loan with respect thereto 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 any ARD Loan or any successor REO Loan with
respect
thereto, notwithstanding that the terms of the related Loan
documents so permit.
To the extent that any Post-ARD Additional Interest is not paid on
a current
basis, it shall, for purposes of this Agreement, be deemed to be
deferred
interest (regardless of whether it is added to principal
outstanding with
respect to any ARD Loan in accordance with the related Loan
documents).
"Prepayment Assumption" shall mean, for purposes of determining
the
accrual of original issue discount, market discount and premium, if
any, on the
Certificates for federal income tax purposes, the assumption that
no Mortgage
Loan is prepaid prior to stated maturity, except that it is assumed
that any ARD
Loan is repaid on its Anticipated Repayment Date.
"Prepayment Consideration" shall mean any Prepayment Premium or
Yield Maintenance Charge.
"Prepayment Consideration Entitlement" shall mean, with respect
to
(i) any Distribution Date on which any Net Prepayment Consideration
Received on
any Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto),
other than the Ala Moana Portfolio Non-Pooled Trust Loan (or any
successor REO
Mortgage Loan with respect thereto) is distributable and (ii) each
of the Class
A-1, Class A-2, Class A-3, Class A-4, Class B, Class C, Class D,
Class E, Class
F, Class G and Class H Certificates entitled to distributions of
principal on
such Distribution Date, an amount equal to the product of (a) such
Net
Prepayment Consideration, multiplied by (b) a fraction (not greater
than 1.0 or
less than 0.0), the numerator of which is equal to the excess, if
any, of the
Pass-Through Rate for such Class of Principal Balance Certificates
over the
relevant Discount Rate, and the denominator of which is equal to
the excess, if
any, of the Mortgage Rate for such Mortgage Loan (or REO Mortgage
Loan) over the
relevant Discount Rate.
"Prepayment Interest Excess" shall mean with respect to any
Serviced
Loan and the Non-Serviced Trust Loans that were subject to a
Principal
Prepayment in full or in part made (or, if resulting from the
application of
Insurance Proceeds or Condemnation Proceeds, any other early
recovery of
principal received) after its Due Date in any Collection Period,
any payment of
interest (net of related Master Servicing Fees) actually collected
from the
related Mortgagor or otherwise and intended to cover interest
accrued on such
Principal Prepayment during the period from and after such Due Date
(exclusive,
however, of any related Prepayment Premium or Yield Maintenance
Charge that may
have been collected and, in the case of any ARD Loan after its
Anticipated
Repayment Date, further exclusive of any Post-ARD Additional
Interest).
"Prepayment Interest Shortfall" shall mean with respect to any
Serviced Loan and the Non-Serviced Trust Loans that were subject to
a Principal
Prepayment in full or in part made (or, if resulting from the
application of
Insurance Proceeds or Condemnation Proceeds, any other early
recovery of
principal received) prior to its Due Date in any Collection Period,
the amount
of interest, to the extent not collected from the related Mortgagor
or otherwise
(without regard to any Prepayment Premium or Yield Maintenance
Charge that may
have been collected), that would have accrued at a rate per annum
equal to the
related Mortgage Rate (net of the rate at which the related Master
Servicing
Fees that are payable on such Mortgage Loan accrue and, in the case
of any ARD
Loan after its Anticipated Repayment Date, the related Additional
Interest Rate
and, in the case of any Non-Serviced Trust Loan, the rate at which
the master
servicing fee payable to the Lead Master Servicer on such Mortgage
Loan accrues)
on the amount of such Principal Prepayment during the period from
the date to
which interest was paid by the related Mortgagor to, but not
including, such Due
Date. A Prepayment Interest Shortfall in respect of a Loan REMIC
Loan shall be a
Prepayment Interest Shortfall in respect of the related Loan REMIC
Regular
Interest.
"Prepayment Premium" shall mean any premium, penalty or fee
(other
than a Yield Maintenance Charge) paid or payable, as the context
requires, as a
result of a Principal Prepayment on, or other early collection of
principal of,
a Mortgage Loan.
"Primary Servicer" shall mean CWCapital LLC, in its capacity as
primary servicer with respect to those Mortgage Loans set forth on
Schedule VII
herein.
"Primary Servicing Agreement" shall mean the written contract
between the Master Servicer and the Primary Servicer relating to
the Mortgage
Loans set forth on Schedule VII herein.
"Primary Servicing Office" shall mean the offices of the Master
Servicer or the Special Servicer, as the context may require, that
are primarily
responsible for such party's servicing obligations hereunder. As of
the Closing
Date, the Primary Servicing Office of the Master Servicer is
located at NC 1075,
8739 Research Drive URP4, Charlotte, North Carolina 28262, and the
Primary
Servicing Office of the Special Servicer is located at 700 Twelfth
Street N.W.,
Suite 700, Washington D.C. 20005.
"Prime Rate" shall mean 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 Trustee in consultation with the Depositor 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 Trustee shall
select a
comparable interest rate index. In either case, such selection
shall be made by
the Trustee in its sole discretion and the Trustee shall notify the
Master
Servicer, the Special Servicer, the Companion Loan Noteholders and
the Holders
of the Class AMP-E Certificates in writing of its selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than the Class IO Certificates).
"Principal
Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without
duplication) of the
following:
(a) the aggregate of all payments of principal (other than
Principal
Prepayments) Received with respect to the Serviced Loans during
the
related
Collection Period, in each case exclusive of any portion of the
particular
payment that represents a Late Collection of principal for
which a
P&I Advance was previously made under this Agreement for a
prior
Distribution Date or that represents the principal portion of a
Monthly
Payment
due on or before the Cut-off Date or on a Due Date subsequent
to
the
related Collection Period;
(b) the aggregate of the principal portions of all Monthly
Payments
due in
respect of the Serviced Loans for their respective Due Dates
occurring
during the related Collection Period, that were Received prior
to the
related Collection Period;
(c)
the aggregate of all Principal Prepayments Received on the
Serviced
Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds
and
Insurance Proceeds Received with respect to any Serviced Loans
during
the
related Collection Period that were identified and applied by
the
Master
Servicer as recoveries of principal of such Mortgage Loans, in
each
case
exclusive of any portion of such proceeds that represents a
Late
Collection
of principal due on or before the Cut-off Date or for which a
P&I
Advance was previously made under this Agreement for a prior
Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds,
Insurance Proceeds and REO Revenues Received with respect to
any
Serviced
REO Properties during the related Collection Period that were
identified
and applied by the Master Servicer as recoveries of principal
of the
related REO Mortgage Loans, in each case exclusive of any
portion
of such
proceeds and/or revenues that represents a Late Collection of
principal
due on or before the Cut-off Date or for which a P&I Advance
was
previously
made under this Agreement for a prior Distribution Date;
(f) the aggregate of the principal portions of all P&I Advances
made
under this
Agreement with respect to the Mortgage Loans and any REO
Mortgage
Loans for such Distribution Date; and
(g) all amounts
received by the Master Servicer on or prior to 12:00
noon (New
York City time) on the Master Servicer Remittance Date from the
applicable
Lead Master Servicer in respect of principal for the
Non-Serviced Trust Loans (which shall include the principal portion
of any
P&I
Advance made by the applicable Lead Master Servicer);
provided that none of the amounts set forth in clauses (a) to (f)
above shall
represent amounts received, due or advanced on or in respect of (1)
the Ala
Moana Portfolio Non-Pooled Trust Loan or any successor REO Loans
thereto or (2)
any Companion Loan or any successor REO Loan thereto; provided,
further, that
the Principal Distribution Amount for the applicable Sub-Pool or
Mortgage Pool
for any Distribution Date shall be reduced by the amount of any
reimbursements
of (i) Nonrecoverable Advances plus interest on such Nonrecoverable
Advances
that are deemed paid or reimbursed from principal collections on
the Mortgage
Loans in a period during which such principal collections would
have otherwise
been included in the Principal Distribution Amount for the
applicable Sub-Pool
or Mortgage Pool for such Distribution Date and (ii)
Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal
collections on
the Mortgage Loans in a period during which such principal
collections would
have otherwise been included in the Principal Distribution Amount
for such
Distribution Date.
"Principal Prepayment" shall mean any voluntary payment of
principal
made by the Mortgagor on a Mortgage Loan that is Received in
advance of its
scheduled Due Date and that is not accompanied by an amount of
interest (without
regard to any Prepayment Premium or Yield Maintenance Charge that
may have been
collected) representing scheduled interest due on any date or dates
in any month
or months subsequent to the month of prepayment.
"Prohibited Party": A party that is a proposed Servicing
Function
Participant which the Master Servicer, the Special Servicer or
Trustee, as
applicable, seeks to retain as a Servicing Function Participant and
as to the
which the Master Servicer, the Special Servicer or the Trustee, as
applicable,
has actual knowledge that such party at any point failed to comply
with its
obligations under the Exchange Act or Regulation AB with respect to
the
securitization transaction contemplated by this Agreement or any
other
securitization. In addition, a Prohibited Party shall be any Person
identified
in writing by the Depositor to the Master Servicer, the Special
Servicer or the
Trustee, as applicable, as a Person, who, to the knowledge of the
Depositor, at
any point failed to comply with its obligations under the Exchange
Act or
Regulation AB obligations with respect to the securitization
transaction
contemplated by this Agreement or any other securitization.
"Prohibited Transaction Exemption" shall mean, collectively,
Prohibited Transaction Exemption ("PTE") 96-22, granted to Wachovia
Capital
Markets, LLC, PTE 89-89, granted to Citigroup Global Markets Inc.
and Final
Authorization Number 97-03E granted to Deutsche Bank Securities
Inc. by the
United States Department of Labor, as such Prohibited Transaction
Exemption may
be amended from time to time.
"Proposed Plan" shall have the meaning assigned thereto in
Section
3.18(a)(iii).
"Prospectus" shall mean the prospectus dated November 27, 2006,
as
supplemented by the Prospectus Supplement, relating to the
Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement
dated
December 6, 2006, relating to the Registered Certificates.
"Purchase Option Holders" shall have the meaning assigned thereto
in
Section 3.19(b).
"Purchase Price" shall mean, with respect to any Mortgage Loan
(or
REO Property), a cash price equal to the aggregate of: (a) the
outstanding
principal balance of such Mortgage Loan (or the successor REO Loan)
as of the
date of purchase, (b) all accrued and unpaid interest on such
Mortgage Loan (or
the successor REO Loan) to, but not including, the Due Date in the
Collection
Period of purchase (exclusive, however, of any portion of such
accrued but
unpaid interest that represents Default Interest or, in the case of
any ARD Loan
after its Anticipated Repayment Date, Post-ARD Additional Interest)
(or, in the
case of any Mortgage Loan for which the Due Date occurs on a day
other than the
first day of each month, the Due Date occurring in the month in
which such
Collection Period ends), (c) all related unreimbursed Servicing
Advances
(including Advances that were reimbursed out of general collections
of the
Mortgage Pool and not reimbursed by, or on behalf of, the related
Mortgagor), if
any, (d) all accrued and unpaid interest, if any, in respect of
related Advances
in accordance with, as applicable, Section 3.12(b) and/or Section
4.03(d), and
(e) in the case of a repurchase by the applicable Mortgage Loan
Seller pursuant
to Section 2.03(a) and the applicable Mortgage Loan Purchase
Agreement, (i) to
the extent not otherwise included in the amount described in clause
(d) of this
definition, any unpaid Special Servicing Fees, Workout Fees and
other Additional
Trust Fund Expenses with respect to such Mortgage Loan (or REO
Property),
including any Liquidation Fee payable because the subject
repurchase occurred
outside the applicable cure period set forth in Section 2.03 with
respect to the
Material Document Defect or Material Breach that gave rise to the
repurchase,
and (ii) to the extent not otherwise included in the amount
described in clause
(c) of this definition, any costs and expenses incurred by the
Master Servicer,
the Special Servicer or the Trustee (on behalf of the Trust) in
enforcing the
obligation of such Person to purchase such Mortgage Loan.
"Qualified Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a
"qualified
institutional buyer" as defined in Rule 144A under the Securities
Act.
"Qualified Insurer" shall mean an insurance company or security
or
bonding company qualified to write the related Insurance Policy in
the relevant
jurisdiction.
"Rated Final Distribution Date" shall mean, for the purposes of
this
Agreement, the Distribution Date in August 2048.
"Rating Agency" shall mean each of S&P and Fitch.
Notwithstanding
the foregoing, when used with respect to any Companion Loan
Securities, Rating
Agency means any rating agencies that rated such Companion Loan
Securities.
"Rating Agency Confirmation" shall mean, with respect to any
proposed action, failure to act, or other event specified herein,
prior written
confirmation by each Rating Agency that such proposed action,
failure to act, or
other event will not in and of itself result in an Adverse Rating
Event with
respect to any Certificates or Companion Loan Securities.
"Realized Loss" shall mean: (1) with respect to each Mortgage
Loan
as to which a Final Recovery Determination has been made (or any
related
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 the
excess, if any, of (a) the sum of (i) 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 or the
final payment was made, as the case may be, plus (ii) without
taking into
account the amount described in subclause (1)(b) of this
definition, all accrued
but unpaid interest (exclusive, however, of any portion of such
accrued but
unpaid interest that represents Default Interest or, in the case of
any ARD Loan
after its Anticipated Repayment Date, Post-ARD Additional Interest)
on such
Mortgage Loan or such REO Loan, as the case may be, to but not
including the Due
Date in the Collection Period in which the Final Recovery
Determination was made
or such final payment was made, as the case may be, plus (iii)
without
duplication with amounts included under another subclause above,
all related
unreimbursed Servicing Advances (together with Unliquidated
Advances in respect
of prior Servicing Advances) and unpaid Liquidation Expenses, plus
(iv) the
amount of any and all related Special Servicing Fees, Liquidation
Fees and/or
Workout Fees with respect to such Mortgage Loan or successor REO
Loan, to the
extent not previously reflected as Realized Loss with respect to
such Mortgage
Loan or successor REO Loan, over (b) all payments and proceeds, if
any, Received
in respect of such Mortgage Loan or, to the extent allocable to
such REO Loan,
the related REO Property, as the case may be, during the Collection
Period in
which such Final Recovery Determination was made or such final
payment was made,
as the case may be; (2) with respect to each Mortgage Loan as to
which any
portion of the principal or previously accrued interest payable
thereunder was
canceled in connection with a bankruptcy or similar proceeding
involving the
related Mortgagor or a modification, extension, waiver or amendment
of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant
to Section
3.21, the amount of such principal and/or interest (other than
Default Interest
or, in the case of any ARD Loan after its Anticipated Repayment
Date, Post-ARD
Additional Interest) so canceled; and (3) with respect to 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, extension,
waiver or
amendment of such Mortgage Loan granted or agreed to by the Special
Servicer
pursuant to Section 3.21, the amount of the consequent reduction in
the interest
portion of each successive Monthly Payment due thereon (each such
Realized Loss
shall be deemed to have been incurred on the Due Date for each
affected Monthly
Payment); provided, that any Loan Combination shall be deemed to be
a single
Loan for purposes of this definition. In the case of either Loan
REMIC, a
Realized Loss with respect to the related Loan REMIC Loan shall be
a Realized
Loss with respect to the related Loan REMIC Regular Interest.
"Received" shall mean in the case of any Mortgage Loan or REO
Property, received by the Master Servicer or any of its
Sub-Servicers, the
Special Servicer or any of its Sub-Servicers or the Trustee, as the
case may be,
in any event on behalf of the Trust.
"Record Date" shall mean: with respect to the initial
Distribution
Date, the Closing Date; and, with respect to any other Distribution
Date, the
last Business Day of the month immediately preceding the month in
which such
Distribution Date occurs.
"Recording/Filing Agent" shall have the meaning assigned thereto
in
Section 2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in
Section 1.03(c).
"Reference Rate" shall mean, with respect to any Interest
Accrual
Period, the rate per annum set forth on the Reference Rate
Schedule.
"Registered Certificate" shall mean any Certificate that has
been
the subject of registration under the Securities Act. As of the
Closing Date,
the Class A-1, Class A-2, Class A-AB, Class A-3, Class A-4, Class
A-1A, Class
IO, Class A-M, Class A-J, Class B, Class C, Class D and Class E
Certificates are
Registered Certificates.
"Regular Interest Certificate" shall mean any Certificate other
than
a Class R-I Certificate or Class R-II Certificate.
"Regulation AB" means 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 -1,631 (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 S" shall mean Regulation S under the Securities
Act.
"Regulation S Global Certificates" shall mean, with respect to
any
Class of Book-Entry Non-Registered Certificates offered and sold
outside of the
United States in reliance on Regulation S, one or more global
Certificates,
collectively, in definitive, fully registered form without interest
coupons,
each of which Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the
United
States in reliance on Regulation S, a legend generally to the
effect that such
Certificates may not be offered, sold, pledged or otherwise
transferred in the
United States or to a United States Securities Person prior to the
date that is
forty (40) days after the later of (a) the commencement of the
offering to
Persons other than distributors in reliance on Regulation S, and
(b) the date of
closing of the offering, except pursuant to an exemption from the
registration
requirements of the Securities Act.
"Regulation S Restricted Certificate": Any Certificate that is
not
rated in one of the four highest generic ratings categories by a
Rating Agency.
"Reimbursement Rate" shall mean the rate per annum applicable to
the
accrual of interest, compounded annually, on Servicing Advances in
accordance
with Section 3.12(b) and on P&I Advances in accordance with, as
applicable,
Section 4.03(d), which rate per annum is equal to the Prime
Rate.
"Release Date" shall have the meaning assigned thereto in
Section
5.02(b).
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to a specific party, as set forth on Exhibit O attached
hereto and as
may be amended from time to time by the parties hereto in writing
due to any
change in interpretations of the requirements of Item 1122(d) of
Regulation AB
(whether due to interpretive guidance provided by the Commission or
its staff or
otherwise). For clarification purposes, multiple parties can have
responsibility
for the same Relevant Servicing Criteria. With respect to a
Servicing Function
Participant engaged by the Master Servicer, the Special Servicer or
the Trustee,
the term "Relevant Servicing Criteria" may refer to a portion of
the Relevant
Servicing Criteria applicable to the Master Servicer, the Special
Servicer or
the Trustee.
"REMIC" shall mean a "real estate mortgage investment conduit"
as
defined in Section 860D of the Code.
"REMIC Pool" shall mean either Loan REMIC, the Lower-Tier REMIC
and/or the Upper-Tier REMIC, as applicable.
"REMIC Provisions" shall mean the provisions of the federal
income
tax law relating to REMICs, 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" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d)
of the Code.
"REO Account" shall mean either of the Pool REO Account or the
applicable Loan Combination REO Account.
"REO Acquisition" shall mean the acquisition of any REO
Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of
any
REO Property pursuant to Section 3.19.
"REO Extension" shall have the meaning assigned thereto in
Section
3.17(a).
"REO Loan" shall mean the mortgage loan (or, if any Loan
Combination
is involved, any of the mortgage loans comprising such Loan
Combination) deemed
for purposes hereof to be outstanding with respect to each REO
Property or, with
respect to a Non-Serviced Trust Loan, the Loan deemed outstanding
when the
related Mortgaged Property is acquired on behalf of the
certificateholders under
the Lead PSA. Each REO Loan shall be deemed to provide for monthly
payments of
principal and/or interest equal to its Assumed Monthly Payment and
otherwise to
have the same terms and conditions as its predecessor Loan (such
terms and
conditions to be applied without regard to the default on such
predecessor Loan
and the acquisition of the related REO Property as part of the
Trust Fund).
"REO Mortgage Loan" shall mean any REO Loan that relates to a
predecessor Mortgage Loan.
"REO Property" shall mean (A) a Mortgaged Property acquired on
behalf and in the name of the Trustee for the benefit of the
Certificateholders
(or, in the case of the Loan Combination Mortgaged Properties
(other than the
Non-Serviced Loan Combinations, which are being serviced under the
applicable
Lead PSA), for the benefit of the Certificateholders and the
Companion Loan
Noteholders, as their interests may appear), 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 Loan and (B)
in the case of
a Non-Serviced Trust Loan, the Trust's beneficial interest in the
"REO Property"
acquired under the related Lead PSA.
"REO Revenues" shall mean all income, rents, profits and
proceeds
derived from the ownership, operation or leasing of any Serviced
REO Property.
"REO Tax" shall have the meaning assigned thereto in Section
3.18(a).
"Reportable Event" shall have the meaning assigned thereto in
Section 11.07.
"Reporting Servicer" shall have the meaning assigned thereto in
Section 11.10.
"Repurchased Note" shall have the meaning assigned thereto in
Section 3.29.
"Repurchased Percentage Interest" shall have the meaning
assigned
thereto in Section 3.29.
"Repurchasing Seller" shall have the meaning assigned thereto
in
Section 3.29.
"Request for Release" shall mean a request signed by a
Servicing
Officer of, as applicable, the Master Servicer in the form of
Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2
attached
hereto.
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from
an
Independent Appraiser selected by the party required or authorized
to obtain
such appraisal hereunder, which appraisal shall be prepared in
accordance with
12 CFR ss. 225.62 and conducted in accordance with the standards of
the
Appraisal Institute or, in the case of a Required Appraisal Loan
having a Stated
Principal Balance of, or in the case of a Mortgaged Property that
has an
allocated loan amount of, less than $2,000,000, if no satisfactory
(as
determined by the Special Servicer pursuant to Section 3.09(a))
appraisal
meeting the foregoing criteria was obtained or conducted within the
prior twelve
(12) months, a "desktop" value estimate performed by the Special
Servicer.
"Required Appraisal Loan" shall mean any Serviced Loan or
Serviced
Loan Combination:
(i) that becomes a Modified Loan,
(ii) that is sixty (60) days or more delinquent in respect of
any Monthly Payment, except for a Balloon Payment,
(iii) such Mortgage Loan is delinquent in respect of its
Balloon Payment, if any, for (A) 60 days, or (B) if the related
Mortgagor has delivered to the Master Servicer a refinancing
commitment acceptable to the Special Servicer prior to the 60th
day
after the date the subject Balloon Payment was due and is
making
Assumed Monthly Payments on each Due Date, 120 days after the
subject Balloon Payment was due (or such shorter period beyond
the
date on
which such Balloon Payment was due within which the
refinancing is scheduled to occur);
(iv) with respect to which the related Mortgaged Property has
become an REO Property,
(v) with respect to which a receiver or similar official is
appointed and continues for sixty (60) days in such capacity in
respect of the related Mortgaged Property,
(vi) with respect to which the related Mortgagor is subject to
a bankruptcy, insolvency or similar proceedings, which, in the
case
of an involuntary bankruptcy, insolvency or similar proceeding,
has
not been dismissed within sixty (60) days of the commencement
thereof, or
(vii) that remains outstanding five (5) years following any
extension of its maturity date pursuant to Section 3.21.
Any Required Appraisal Loan (other than a Mortgage Loan that became
a Required
Appraisal Loan pursuant to clause (vii) above) shall cease to be
such at such
time as it has become a Corrected Mortgage Loan (except if such
Required
Appraisal Loan had not become a Specially Serviced Mortgage Loan at
the time the
applicable event(s) described in any of clauses (i) through (vii)
above ceased
to exist), it has remained current for at least three (3)
consecutive Monthly
Payments, and no other event described in clauses (i) through (vii)
above has
occurred with respect thereto during the preceding three-month
period; provided
that the term "Required Appraisal Loan" shall include any successor
REO Loan(s);
provided, further, that any Serviced Loan Combination shall, upon
the occurrence
of any of the events described in clauses (i) through (vii) of this
definition
in respect of any Loan in such Serviced Loan Combination, be deemed
to be a
single "Required Appraisal Loan"; and provided, further, that if
the Stated
Principal Balance of the Mortgage Loan is less than $2,000,000, the
Special
Servicer may perform an internal valuation of the Mortgaged
Property instead of
obtaining a Required Appraisal and, if the portion of the Stated
Principal
Balance of the Mortgage Loan that has been allocated to a Mortgaged
Property,
assuming there is more than one Mortgaged Property securing the
Mortgage Loan,
is less than $2,000,000, the Special Servicer may perform an
internal valuation
of the particular Mortgaged Property instead of obtaining an
appraisal.
"Required Appraisal Value" shall mean, with respect to any
Mortgaged
Property securing (or REO Property relating to) a Required
Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of
the Appraised
Value of such Mortgaged Property (or REO Property) as determined by
the most
recent Required Appraisal or any letter update of such Required
Appraisal (as it
may be adjusted downward by the Special Servicer in accordance with
the
Servicing Standard (without implying any duty to do so) based upon
its review of
the Appraisal or estimate and such other information as it may
deem
appropriate), over (ii) the amount of any obligations secured by
liens on such
Mortgaged Property (or REO Property) that are prior to the lien of
the related
Required Appraisal Loan; plus (b) the amount of Escrow Payments and
Reserve
Funds held by the Master Servicer in respect of such Required
Appraisal Loan
that (i) are not being held in respect of any real estate taxes and
assessments,
insurance premiums or, if applicable, ground rents, (ii) are not
otherwise
scheduled to be applied or utilized (except to pay debt service on
such Required
Appraisal Loan) within the twelve-month period following the date
of
determination and (iii) may be applied towards the reduction of the
principal
balance of such Required Appraisal Loan; plus (c) the amount of any
letter of
credit constituting additional security for such Required Appraisal
Loan and
that may be applied towards the reduction of the principal balance
of such
Required Appraisal Loan.
"Reserve Account" shall mean any account established by the
Master
Servicer, pursuant to Section 3.03(d), as to which Reserve Funds
shall be
deposited.
"Reserve Funds" shall mean, with respect to any Serviced Loan,
any
amounts delivered by the related Mortgagor to be held by or on
behalf of the
mortgagee representing reserves for repairs, capital improvements
and/or
environmental remediation in respect of the related Mortgaged
Property or debt
service on such Mortgage Loan.
"Residual Interest Certificate" shall mean a Class R-I or Class
R-II
Certificate.
"Responsible Officer" shall mean any officer of the Corporate
Trust
Group of the Trustee, the Certificate Registrar or the Paying Agent
assigned to
the Corporate Trust Office with direct responsibility for the
administration of
this Agreement and also, with respect to a particular matter, any
other officer
to whom such matter is referred because of such officer's knowledge
of and
familiarity with the particular subject, and, in the case of any
certification
required to be signed by a Responsible Officer, such an officer
whose name and
specimen signature appears on a list of corporate trust officers
furnished to
the Master Servicer by the Trustee, the Certificate Registrar or
the Paying
Agent, as the case may be, as such list may from time to time be
amended.
"Review Package" shall mean a package of documents consisting of
a
memorandum outlining the analysis and recommendation (in accordance
with the
Servicing Standard) of the Master Servicer or the Special Servicer,
as the case
may be, with respect to the matters that are the subject thereof,
and copies of
all relevant documentation.
"Rule 144A Global Certificate" shall mean, with respect to any
Class
of Book-Entry Non-Registered Certificates, one or collectively more
global
certificates representing such Class registered in the name of the
Depository or
its nominee, in definitive, fully registered form without interest
coupons, none
of which certificates bears a Regulation S Legend, and each of
which
certificates has a Rule 144A CUSIP number.
"S&P" shall mean 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 Standard & Poor's Ratings Services, a
division of The
McGraw-Hill Companies, Inc. herein referenced shall be deemed to
refer to the
equivalent ratings of the party so designated.
"Sarbanes-Oxley Act" means the Sarbanes-Oxley Act of 2002 and
the
rules and regulations of the Commission promulgated thereunder
(including any
interpretations thereof by the Commission's staff).
"Sarbanes-Oxley Certification" shall have the meaning assigned
to
such term in Section 11.06.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Service(s)(ing)" means, in accordance with Regulation AB, the
act
of servicing and administering the Mortgage Loans or any other
assets of the
Trust by an entity that meets the definition of "servicer" set
forth in Item
1101 of Regulation AB and is subject to the disclosure requirements
set forth in
Item 1108 of Regulation AB. For clarification purposes, any
uncapitalized
occurrence of this term shall have the meaning commonly understood
by
participants in the commercial mortgage-backed securities
market.
"Serviced Companion Loan" shall not apply to any of the
Mortgage
Loans. For the avoidance of doubt, there are no Serviced Companion
Loans with
respect to this transaction.
"Serviced Loan" shall mean any Loan (including a Specially
Serviced
Mortgage Loan, but excluding an REO Loan) that is, as contemplated
by Section
3.01, to be serviced and administered by the Master Servicer and/or
the Special
Servicer hereunder, which includes the Mortgage Loans (other than
the
Non-Serviced Trust Loans) and the Companion Loans (other than the
Non-Serviced
Companion Loans).
"Serviced Loan Combination": There are no Serviced Loan
Combinations
with respect to this transaction and provisions herein relating to
Serviced Loan
Combinations shall not be applicable.
"Serviced Loan Combination Trust Mortgage Loan": There are no
Serviced Loan Combination Trust Mortgage Loans in this transaction
and
provisions herein relating to Serviced Loan Combination Trust
Mortgage Loans
shall not be applicable.
"Serviced Pari Passu Companion Loan": There are no Serviced
Pari
Passu Companion Loans in this transaction and provisions herein
relating to
Serviced Pari Passu Companion Loans shall not be applicable.
"Serviced REO Property": shall mean any REO Property with respect
to
a Serviced Loan.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the
products
obtained by multiplying, for each Serviced Loan primary serviced by
such
Sub-Servicer, (i) the principal balance of such Loan as of the end
of the
immediately preceding Collection Period and (ii) the sub-servicing
fee rate
specified in the related Sub-Servicing Agreement for such Loan; and
(b) with
respect to the Master Servicer, as of any date of determination,
the aggregate
of the products obtained by multiplying, for each Serviced Loan and
the
Non-Serviced Trust Loans (i) the principal balance of such Serviced
Loan or the
Non-Serviced Trust Loans, as applicable, as of the end of the
immediately
preceding Collection Period and (ii) the excess, if any, of the
Master Servicing
Fee Rate for such Serviced Loan or the Non-Serviced Trust Loans, as
applicable,
over the sub-servicing fee rate (if any) applicable to such
Serviced Loan, as
specified in any Sub-Servicing Agreement related to such Loan.
"Servicer Reports" shall mean each of the files and reports
comprising the CMSA Investor Reporting Package (excluding the CMSA
Bond Level
File, the CMSA Collateral Summary File and CMSA Reconciliation of
Funds).
"Servicing Account" shall have the meaning assigned thereto in
Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys'
fees and fees
and expenses of real estate brokers) incurred by the Master
Servicer, the
Special Servicer or the Trustee in connection with the servicing
and
administration of a Serviced Loan, if a default is imminent
thereunder or a
default, delinquency or other unanticipated event has occurred with
respect
thereto, or in connection with the administration of any REO
Property,
including, but not limited to, the cost of (a) compliance with the
obligations
of the Master Servicer, the Special Servicer or the Trustee, if
any, set forth
in 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, Condemnation Proceeds or
Liquidation
Proceeds, (d) any enforcement or judicial proceedings with respect
to a
Mortgaged Property, including foreclosures, (e) any Required
Appraisal or any
other appraisal or update thereof expressly permitted or required
to be obtained
hereunder, (f) the operation, management, maintenance and
liquidation of any REO
Property, (g) obtaining any related ratings confirmation and (h)
the Master
Servicer, Special Servicer or Trustee fulfilling its obligations
under Section
2.03; provided that, notwithstanding anything to the contrary,
"Servicing
Advances" shall not include allocable overhead of the Master
Servicer, the
Special Servicer or the Trustee, 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 any Mortgage Loan or
REO Property
pursuant to any provision of this Agreement or the applicable
Co-Lender
Agreement.
"Servicing Criteria" means the criteria set forth in paragraph
(d)
of Item 1122 of Regulation AB, as such may be amended from time to
time.
"Servicing Fees" shall mean with respect to each Serviced Loan
and
the Non- Serviced Trust Loans (and any successor REO Loan with
respect thereto),
the Master Servicing Fee and the Special Servicing Fee. Solely for
federal
income taxes purposes, in the case of each Loan REMIC Loan, the
Servicing Fee
shall be deemed to be paid by the Lower-Tier REMIC on the related
Loan REMIC
Balance of the related Loan REMIC Regular Interest.
"Servicing File" shall mean, (i) with respect to each Serviced
Loan,
collectively, any and all documents (other than documents required
to be part of
the related Mortgage File) in the possession of the Master Servicer
or the
Special Servicer and relating to the servicing of any Serviced
Loan, including
any original letter of credit (together with any transfer or
assignment
documents related thereto), any franchise agreement and any
franchise comfort
letter (together with any transfer or assignment documents relating
thereto),
appraisals, surveys, engineering reports, environmental reports,
opinion letters
of counsel to a related Mortgagor, escrow agreements, property
management
agreements and franchise agreements and (ii) with respect to each
Non-Serviced
Trust Loan, a copy of the related Mortgage Note (and all
intervening
endorsements), the applicable Lead PSA, the applicable Co Lender
Agreement and
appraisal shall be sufficient for the applicable Servicing
File.
"Servicing Function Participant" means any Person, other than
the
Master Servicer, the Special Servicer and the Trustee, that is
performing
activities that address the Servicing Criteria, unless such
Person's activities
relate only to 5% or less of the Mortgage Loans by unpaid principal
balance
calculated in accordance with the provisions of Regulation AB.
"Servicing Officer" shall mean any officer or employee of the
Master
Servicer or the Special Servicer involved in, or responsible for,
the
administration and servicing of the Serviced 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-Released Bid" shall have the meaning assigned thereto
in
Section 7.01(c).
"Servicing-Retained Bid" shall have the meaning assigned thereto
in
Section 7.01(c).
"Servicing Standard" shall mean with respect to the Master
Servicer
or the Special Servicer, to service and administer the Serviced
Loans and any
Serviced REO Properties that such party is obligated to service and
administer
pursuant to this Agreement: (i) in accordance with the higher of
the following
standards of care: (A) the same manner in which, and with the same
care, skill,
prudence and diligence with which, the Master Servicer or the
Special Servicer,
as the case may be, services and administers comparable mortgage
loans with
similar borrowers and comparable REO properties for other
third-party portfolios
(giving due consideration to the customary and usual standards of
practice of
prudent institutional commercial mortgage lenders servicing their
own mortgage
loans and REO properties), and (B) 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, services and administers
comparable
mortgage loans owned by the Master Servicer or the Special
Servicer, as the case
may be, in either case exercising reasonable business judgment and
acting in
accordance with applicable law, the terms of this Agreement and the
terms of the
respective Serviced Loans; (ii) with a view to: the timely recovery
of all
payments of principal and interest, including Balloon Payments,
under the
Serviced Loans or, in the case of any such Serviced Loan that is
(1) a Specially
Serviced Mortgage Loan or (2) a Serviced Loan as to which the
related Mortgaged
Property has become an REO Property, the maximization of recovery
on the
Mortgage Loan to the Certificateholders (as a collective whole)
(or, if any Loan
Combination is involved, with a view to the maximization of
recovery on such
Loan Combination to the Certificateholders and the related
Companion Loan
Noteholders (as a collective whole) (it being understood that the
interest of
any Subordinate Companion Loan is a subordinate interest, subject
to the terms
and conditions of the related Co-Lender Agreement)) of principal
and interest,
including Balloon Payments, on a present value basis (the relevant
discounting
of anticipated collections that will be distributable to the
Certificateholders
(or, in the case of any Loan Combination, to the Certificateholders
and the
related Companion Noteholders) to be performed at the related
Mortgage Rate (or,
in the case of any Loan Combination, at the weighted average of the
Mortgage
Rates for such Loan Combination)) or, in the case of any ARD Loan
or related REO
Loan after its Anticipated Repayment Date, net of the related
Additional
Interest Rate; and (iii) without regard to (A) any relationship,
including as
lender on any other debt, that the Master Servicer or the Special
Servicer, as
the case may be, or any Affiliate thereof, may have with any of the
related
Mortgagors, or any Affiliate thereof, or any other party to this
Agreement; (B)
the ownership of any Certificate (or any Companion Loan or any
certificate
backed by a Companion Loan or any mezzanine loan) by the Master
Servicer or the
Special Servicer, as the case may be, or any Affiliate thereof; (C)
the
obligation of the Master Servicer or the Special Servicer, as the
case may be,
to make Advances; (D) the right of the Master Servicer or the
Special Servicer,
as the case may be, or any Affiliate of either of them, to receive
compensation
or reimbursement of costs hereunder generally or with respect to
any particular
transaction; and (E) the ownership, servicing or management for
others of any
other mortgage loan or real property not subject to this Agreement
by the Master
Servicer or the Special Servicer, as the case may be, or any
Affiliate thereof.
"Servicing Transfer Event" shall mean, with respect to any
Serviced
Loan, the occurrence of any of the events described in clauses (a)
through (h)
of the definition of "Specially Serviced Mortgage Loan," except in
the case of a
Serviced Loan Combination, if the related Subordinate Companion
Loan Noteholder
is exercising its cure rights under the related Co-Lender
Agreement.
"ShopKo Portfolio Loan Combination" shall have the meaning
assigned
thereto in the Preliminary Statement.
"ShopKo Portfolio Pari Passu Companion Loans" shall have the
meaning
assigned thereto in the Preliminary Statement.
"ShopKo Portfolio Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Similar Law" shall have the meaning assigned thereto in
Section
5.02(c).
"Single Certificate" shall mean, for purposes of Section 4.02,
a
hypothetical Regular Interest Certificate evidencing an initial
$1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents and/or the related
Mortgage Loan
documents provide substantially to the effect that: (i) it was
formed or
organized solely for the purpose of either owning and operating the
Mortgaged
Property or Properties securing one or more Mortgage Loans, or
owning and
pledging Defeasance Collateral in connection with the defeasance of
a Defeasance
Loan, as the case may be, (ii) it may not engage in any business
unrelated to
such Mortgaged Property or Properties or such Defeasance
Collateral, as the case
may be, (iii) it will not have any assets other than those related
to its
interest in and operation of such Mortgaged Property or such
Defeasance
Collateral, as the case may be, (iv) it may not incur indebtedness
other than
incidental to its ownership and operation of the applicable
Mortgaged Property
or Properties or Defeasance Collateral, as the case may be, (v) it
will maintain
its own books and records and accounts separate and apart from any
other Person,
(vi) it will hold itself out as a legal entity, separate and apart
from any
other Person, and (vii) in the case of such an entity whose sole
purpose is
owning or operating a Mortgaged Property, it will have an
independent director
or, if such entity is a partnership or a limited liability company,
at least one
general partner or limited liability company member thereof, as
applicable,
which shall itself be a "single purpose entity" (having as its sole
asset its
interest in the Single Purpose Entity) with an independent
director.
"Special Servicer" shall mean CWCapital Asset Management LLC, in
its
capacity as special servicer hereunder, or any successor special
servicer
appointed as herein provided.
"Special Servicing Reporting Date" shall have the meaning
assigned
thereto in Section 3.13(c).
"Special Servicing Fee" shall mean, with respect to each
Specially
Serviced Mortgage Loan and each REO Loan (excluding any
Non-Serviced Trust Loan
that has become an REO Loan), the fee designated as such in, and
payable to the
Special Servicer pursuant to, Section 3.11(b).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Loan (excluding an
REO Loan that
corresponds to a Non-Serviced Trust Loan), .025% per annum.
"Specially Serviced Mortgage Loan" shall mean any Serviced Loan
as
to which any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any
Monthly
Payment
(including a Balloon Payment), which failure continues, or the
Master
Servicer determines in its reasonable, good faith judgment in
consultation with the
Special Servicer, will continue, unremedied (without
regard to
any grace period) (i) except in the case of a Balloon Loan
delinquent
in respect of its Balloon Payment, for sixty (60) days beyond
the date
on which the subject payment was due, or (ii) solely in the
case
of a
delinquent Balloon Payment on a Balloon Loan, (A) for sixty (60)
days
beyond the
date on which the subject Balloon Payment was due or (B) in the
case of a
Balloon Loan as to which the related Mortgagor shall have
delivered
a refinancing commitment acceptable to the Special Servicer
prior to
the 60th day after the date the subject Balloon Payment was due
and is
making Assumed Monthly Payments on each Due Date for one
hundred
twenty
(120) days beyond the date on which the subject Balloon Payment
was
due (or
for such shorter period beyond the date on which the subject
Balloon
Payment was due during which the refinancing is scheduled to
occur);
(b) the Master Servicer or Special Servicer (in the case of the
Special
Servicer, with the consent of the applicable Controlling Class
Representative, subject to Section 6.11) shall have determined
in
accordance
with the Servicing Standard, based on communications with the
related
Mortgagor, that a default in the making of a Monthly Payment on
such
Serviced Loan, including a Balloon Payment, is likely to occur and
is
likely to
remain unremedied (without regard to any grace period) for at
least the
applicable period contemplated by clause (a) of this
definition;
or
(c) there shall have occurred a default (other than as described
in
clause (a)
above and other than an Acceptable Insurance Default) that (i)
in the
judgment of the Master Servicer or the Special Servicer (in the
case of
the Special Servicer, with the consent of the applicable
Controlling Class Representative, subject to Section 6.11)
materially
impairs
the value of the related Mortgaged Property as security for
such
Serviced
Loan or otherwise materially adversely affects the interests of
Certificateholders (or, in the case of any Companion Loan, the
related
Companion
Loan Noteholders), and (ii) continues unremedied for the
applicable
grace period under the terms of such Serviced Loan (or, if no
grace
period is specified and the default is capable of being cured,
for
thirty
(30) days); provided that any default that results in
acceleration
of the
related Mortgage Loan without the application of any grace
period
under the
related Mortgage Loan documents shall be deemed not to have a
grace
period; and provided, further, that any default requiring a
Servicing
Advance shall be deemed to materially and adversely affect the
interests
of Certificateholders (or, in the case of any Companion Loan,
the
related Companion Loan Noteholders); or
(d) the Master Servicer or the Special Servicer (in the case of
the
Special
Servicer, with the consent of the applicable Controlling Class
Representative, subject to Section 6.11) has determined that (i) a
default
(other
than as described in clause (b) of this definition) under the
Mortgage
Loan is imminent, (ii) such default will materially impair the
value of
the related Mortgaged Property as security for such Serviced
Loan
or
otherwise materially adversely affects the interests of
Certificateholders (or, in the case of any Companion Loan, the
related
Companion
Loan Noteholders), and (iii) the default is likely to continue
unremedied
for the applicable grace period under the terms of such
Serviced
Loan (or, if no grace period is specified and the default is
capable of
being cured, for thirty (30) days); provided that any default
that
results in acceleration of the related Mortgage Loan without
the
application of any grace period under the related Mortgage Loan
documents
shall be
deemed not to have a grace period; and provided, further, that
any
determination that a Servicing Transfer Event has occurred under
this
clause (d)
with respect to any Mortgage Loan solely by reason of the
failure of
the related Mortgagor to maintain or cause to be maintained
insurance
coverage against damages or losses arising from acts of
terrorism
will be subject to Section 6.11, and the second paragraph of
Section
3.07(a); or
(e) 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 and such decree or
order
shall have remained in force and not dismissed for a period of
sixty
(60) days;
or
(f) 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
(g) the related Mortgagor shall admit in writing its inability
to
pay its
debts generally as they become due, file a petition to take
advantage
of any applicable insolvency or reorganization statute, make an
assignment
for the benefit of its creditors, or voluntarily suspend
payment of
its obligations; or
(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 Serviced Loan will cease to be a
Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred with respect
to such
Serviced Loan, when the related Mortgaged Property has become an
REO Property
or, so long as at such time no circumstance identified in clauses
(a) through
(h) above exists that would cause the Serviced Loan to continue to
be
characterized as a Specially Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a)
of
this definition, the related Mortgagor has made three consecutive
full and
timely Monthly Payments under the terms of such Serviced 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,
extension,
waiver or amendment granted or agreed to by the Master Servicer or
the Special
Servicer pursuant to Section 3.21);
(x) with respect to the circumstances described in clauses (b),
(d),
(e), (f) and (g) of this definition, such circumstances cease to
exist in the
good faith, reasonable judgment of the Special Servicer, but, with
respect to
any bankruptcy or insolvency proceedings described in clauses (e),
(f) and (g),
no later than the entry of an order or decree dismissing such
proceeding;
(y) with respect to the circumstances described in clause (c)
of
this definition, such default is cured as determined by the Special
Servicer in
its reasonable, good faith judgment; and
(z) with respect to the circumstances described in clause (h)
of
this definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master
Servicer's
determination and the Master Servicer may conclusively rely on the
Special
Servicer's determination as to whether a Servicing Transfer Event
has occurred
giving rise to a Serviced Loan's becoming a Specially Serviced
Mortgage Loan. If
any Serviced Loan that is part of any Loan Combination becomes a
Specially
Serviced Mortgage Loan, then each other Serviced Loan in the Loan
Combination
shall also become a Specially Serviced Mortgage Loan.
"Startup Day" shall mean, with respect to each REMIC Pool, the
day
designated as such in Section 10.01(c).
"Stated Maturity Date" shall mean, with respect to any Mortgage
Loan, the Due Date specified in the related Mortgage Note (as in
effect on the
Closing Date) on which the last payment of principal is due and
payable under
the terms of such 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, extension, waiver or amendment of such Mortgage Loan
granted or
agreed to by the Special Servicer pursuant to Section 3.21 and, in
the case of
any ARD Loan, without regard to its Anticipated Repayment Date.
"Stated Principal Balance" shall mean: (a) with respect to any
Mortgage Loan (and any successor REO Mortgage Loan with respect
thereto), the
Cut-off Date Balance of such Mortgage Loan, as permanently reduced
on each
Distribution Date (to not less than zero) by (i) any principal
payments (whether
received or advanced) or other collections in respect of such
Mortgage Loan that
were identified and applied as a recovery of principal for such
Mortgage Loan
(or any such successor REO Mortgage Loan with respect thereto)
during the
related Collection Period and (ii) the principal portion of any
Realized Loss
incurred in respect of such Mortgage Loan (or, if such Mortgage
Loan is part of
a Loan Combination, any Realized Loss incurred in respect of such
Loan
Combination and allocated to such Mortgage Loan) (or any such
successor REO
Mortgage Loan with respect thereto) during the related Collection
Period; and
(b) with respect to any Serviced Companion Loan (and any successor
REO Loan with
respect thereto), the Cut-off Date Balance of such Loan, as
permanently reduced
on each Loan Combination Remittance Date (to not less than zero) by
(i) any
principal payments (whether received or advanced) or other
collections in
respect of such Loan that were identified and applied as a recovery
of principal
for such Loan (or any such successor REO Loan with respect thereto)
during the
related Collection Period, and (ii) the principal portion of any
Realized Loss
incurred in respect of the related Loan Combination and allocated
to such Loan
(or any such successor REO Loan with respect thereto) during the
related
Collection Period.
In the case of each Loan REMIC Loan, "Mortgage Loan" shall refer
to
the related Loan REMIC Regular Interest for purposes of this
definition as the
context requires.
Other than for purposes of determining the Weighted Average Net
Mortgage Rate, the Stated Principal Balance of the Mortgage Pool
will not be
reduced by the amount of any principal collections from the
Mortgage Pool that
were used to reimburse a Workout-Delayed Reimbursement Amount
pursuant to
Section 3.05(a)(vii), unless the corresponding Advance was
determined to be a
Nonrecoverable Advance.
Notwithstanding the foregoing, if a Liquidation Event or Final
Recovery Determination occurs in respect of any Mortgage Loan or
REO Property,
then the "Stated Principal Balance" of such Mortgage Loan or of the
related REO
Loan, as the case may be, shall be zero commencing as of the
Distribution Date
in the Collection Period next following the Collection Period in
which such
Liquidation Event occurred.
"Sub-Pool" shall mean either of Sub-Pool 1 or Sub-Pool 2.
"Sub-Pool 1" shall mean collectively, all of the Mortgage Loans
that
are identified on the Mortgage Loan Schedule as belonging to
Sub-Pool 1 and any
successor REO Loans with respect thereto.
"Sub-Pool 1 Available Distribution Amount" shall mean with
respect
to any Distribution Date, that portion, if any, of the Available
Distribution
Amount attributable to collections Received on the Mortgage Loans
in Sub-Pool 1.
"Sub-Pool 1 Principal Distribution Amount" shall mean with
respect
to any Distribution Date, that portion, if any, of the Adjusted
Principal
Distribution Amount attributable to collections Received on the
Mortgage Loans
in Sub-Pool 1.
"Sub-Pool 2" shall mean collectively, all of the Mortgage Loans
that
are identified on the Mortgage Loan Schedule as belonging to
Sub-Pool 2 and any
successor REO Loans with respect thereto.
"Sub-Pool 2 Available Distribution Amount" shall mean with
respect
to any Distribution Date, that portion, if any, of the Available
Distribution
Amount attributable to collections Received on the Mortgage Loans
in Sub-Pool 2.
"Sub-Pool 2 Principal Distribution Amount" shall mean with
respect
to any Distribution Date, that portion, if any, of the Adjusted
Principal
Distribution Amount attributable to collections Received on the
Mortgage Loans
in Sub-Pool 2.
"Sub-Servicer" means any Person that Services one or more
Mortgage
Loan(s) on behalf of the Master Servicer, the Special Servicer or
an Additional
Servicer and is responsible 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, the Special
Servicer or an Additional Servicer under this Agreement, with
respect to some or
all of the Mortgage Loans, that are identified in the Servicing
Criteria.
"Sub-Servicing Agreement" shall mean the written contract
between
the Master Servicer or the Special Servicer, on the one hand, and
the Primary
Servicer or any Sub-Servicer, on the other hand, relating to
servicing and
administration of Serviced Loans as provided in Section 3.23.
"Subcontractor" means any vendor, subcontractor or other Person
that
is not responsible for the overall servicing (as "servicing" is
commonly
understood by participants in the mortgaged-backed securities
market) of
Mortgage Loans but performs one or more discrete functions of the
Servicing
Criteria with respect to Mortgage Loans under the direction or
authority of the
Master Servicer, the Special Servicer, the Trustee, an Additional
Servicer, or a
Sub-Servicer.
"Subordinate Companion Loan" shall have the meaning assigned
thereto
in the Preliminary Statement.
"Subordinate Companion Loan Noteholder" shall mean, with respect
to
any Loan Combination with a Subordinate Companion Loan, the Holder
of the
Mortgage Note for such Subordinate Companion Loan.
"Subsequent Master Servicer" shall mean the master servicer
under
any Subsequent PSA.
"Subsequent PSA" shall mean any "pooling and servicing
agreement"
entered into in connection with a securitization of any Pari Passu
Companion
Loan where the servicing of such Companion Loan is performed under
this
Agreement or a Lead PSA.
"Subsequent Trustee" shall mean the trustee under any
Subsequent
PSA.
"Successful Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Supplemental
Servicer Schedule": With respect to the Loans to be
serviced by the Master Servicer, a list attached hereto as Schedule
VI, which
list sets forth the following information with respect to each
Loan:
(i) the Mortgagor's name;
(ii) property type;
(iii) the revised rate with respect to any ARD Loan;
(iv) the original balance;
(v) the original and remaining amortization term;
(vi) whether such Mortgage Loan is secured by a letter of
credit;
(vii) the current balance and monthly amount of any reserve or
escrowed funds;
(viii) the grace period with respect to both default interest
and late payment charges;
(ix) whether such Mortgage Loan is insured by environmental
policies;
(x) whether a cash management agreement or lock-box agreement
is in place; and
(xi) the number of units, pads, rooms or square feet of the
Mortgaged Property.
Such list may be in the form of more than one list, collectively
setting forth
all of the information required.
"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 8.13 (or, in the absence of any such
appointment, the
Trustee).
"Tax Matters Person" shall mean, with respect to each REMIC
Pool,
the Person designated as the "tax matters person" of such REMIC
Pool in the
manner provided under Treasury Regulations Section 1.860F-4(d) and
Treasury
Regulations Section 301.6231(a)(7)-1, which Person shall be the
Plurality
Residual Interest Certificateholder in respect of the related Class
of Residual
Interest Certificates.
"Tax Returns" shall mean the federal income tax return on
Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment
Conduit (REMIC)
Income Tax Return, including Schedule Q thereto, Quarterly Notice
to Residual
Interest Holders of REMIC Taxable Income or Net Loss Allocation, or
any
successor forms, to be filed on behalf of each REMIC Pool due to
its
classification as a REMIC under the REMIC Provisions and all
federal income tax
or information returns to be filed on behalf of the Grantor Trust
due to its
classification as a grantor trust under subpart E, Part I of
subchapter J of the
Code, together with any and all other information, reports or
returns that may
be required to be furnished to the Certificateholders or filed with
the IRS
under any applicable provisions of federal tax law or any other
governmental
taxing authority under applicable state and local tax law.
"Tenants-in-Common Loan" shall mean those certain Mortgage
Loans
that are identified on Exhibit V hereto for which the related
Mortgagors own the
related Mortgaged Property as tenants-in-common and the related
Mortgagor is
subject to further syndication.
"The Shoppes on Shugart Shopping Center Mortgage Loan" shall
mean
the Mortgage Loan secured by the property known as The Shoppes on
Shugart
Shopping Center.
"The Shoppes on Shugart Shopping Center Yield Supplement
Amount"
shall mean the yield supplement amount received by the Trustee in
respect of the
related Mortgage Loan Seller's obligation pursuant to the related
Mortgage Loan
Purchase Agreement to repurchase the mortgage loan with a yield
supplement
payment equal to the yield maintenance, as calculated pursuant to
the related
loan documents, prior to the defeasance of The Shoppes on Shugart
Shopping
Center on any date prior to the date which is two years after the
Startup Day.
The Shoppes on Shugart Shopping Center Yield Supplement Amount is
an asset of
the Grantor Trust, and shall not be an asset of any REMIC Pool.
"Total Principal Reinstatement Amount" shall mean, with respect
to
any Distribution Date, an amount (to be calculated by the Trustee
immediately
following, and after taking into account, all distributions to be
made with
respect to the Certificates (excluding the Class AMP-E
Certificates) on such
Distribution Date) equal to the least of: (1) the Additional
Principal
Distribution Amount for the subject Distribution Date; (2) the
amount, if any,
by which (a) the aggregate Stated Principal Balance of the Mortgage
Pool that
will be outstanding immediately following the subject Distribution
Date, exceeds
(b) the aggregate of the Class Principal Balances of all the
Classes of
Principal Balance Certificates (excluding the Class AMP-E
Certificates) (after
taking into account the distributions made with respect to the
Certificates on
such Distribution Date, but prior to any adjustments to any of
those Classes of
Principal Balance Certificates pursuant to Section 4.04 or Section
4.05); and
(3) the aggregate Loss Reimbursement Amount in respect of the
Principal Balance
Certificates (excluding the Class AMP-E Certificates) for the
subject
Distribution Date (reduced by all distributions made with respect
to the
Principal Balance Certificates in reimbursement of such aggregate
Loss
Reimbursement Amount on the subject Distribution Date).
"Transfer" shall mean any direct or indirect transfer, sale,
pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning
assigned
thereto in Section 5.02(d)(i)(B).
"Transfer Date" shall have the meaning assigned thereto in
Section
5.02(b).
"Transferee" shall mean any Person who is acquiring, by
Transfer,
any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing of, by
Transfer,
any Ownership Interest in a Certificate.
"Trust" shall mean the common law trust created hereunder.
"Trust Fund" shall mean, collectively, all of the assets of the
Lower-Tier REMIC, the Upper-Tier REMIC, each Loan REMIC and the
Grantor Trust.
"Trustee" shall mean Wells Fargo Bank, N.A., in its capacity as
trustee hereunder, or any successor trustee appointed as herein
provided.
"Trustee Fee" shall mean, with respect to each Distribution Date,
an
amount equal to one-twelfth of the product of (i) the Trustee Fee
Rate,
multiplied by (ii) the aggregate Stated Principal Balance of the
Mortgage Pool
outstanding immediately prior to such Distribution Date; provided,
however, that
with respect to the Ala Moana Portfolio Non-Pooled Trust Loan, the
Trustee Fee
shall mean, with respect to each Distribution Date, an amount equal
to the
product of (i) the Trustee Fee Rate multiplied by (ii) the Stated
Principal
Balance of the Ala Moana Portfolio Non-Pooled Trust Loan. Solely
for federal
income tax purposes, in the case of the Loan REMIC Loans, the
Trustee Fee shall
be deemed to be paid by the Lower-Tier REMIC in respect of the
related Loan
REMIC Regular Interest.
"Trustee Fee Rate" shall mean 0.0008% per annum.
"Trustee Liability" shall have the meaning assigned thereto in
Section 8.05(b).
"UCC" shall mean
the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement
executed
(if required by the UCC) and filed pursuant to the UCC.
"Uncertificated Lower-Tier Interest" shall mean each separate
non-certificated beneficial ownership interest in the Lower-Tier
REMIC issued
hereunder and designated as a "regular interest" in the Lower-Tier
REMIC. Each
Uncertificated Lower-Tier Interest (other than the Class LAMP-E1
and Class
LAMP-E2 Interests) shall accrue interest at the Weighted Average
Net Mortgage
Rate, and in the case of the Class LAMP-E1 and Class LAMP-E2
Interests, at the
Class AMP-E Adjusted Net Mortgage Rate, and shall be entitled to
distributions
of principal, subject to the terms and conditions hereof, in an
aggregate amount
equal to its initial Uncertificated Principal Balance as set forth
in the
Preliminary Statement hereto. The designations for the respective
Uncertificated
Lower-Tier Interests are set forth in the Preliminary Statement
hereto.
"Uncertificated Principal Balance" shall mean the principal
balance
of any Uncertificated Lower-Tier Interest outstanding as of any
date of
determination. As of the Closing Date, the Uncertificated Principal
Balance of
each Uncertificated Lower-Tier Interest shall equal the amount set
forth in the
Preliminary Statement hereto. On each Distribution Date, the
Uncertificated
Principal Balance of each Uncertificated Lower-Tier Interest shall
be
permanently reduced by all distributions of principal deemed to
have been made
thereon on such Distribution Date pursuant to Section 4.01(i), 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).
"Underwriters" shall mean Wachovia Capital Markets, LLC,
Citigroup
Global Markets Inc. and Deutsche Bank Securities Inc., and their
respective
successors in interest.
"Unfunded Principal Balance Reduction" shall mean any reduction
made
in the Class Principal Balance of any Class of Principal Balance
Certificates
pursuant to Section 4.04(a) or the Uncertificated Principal Balance
of any
Uncertificated Lower-Tier Interest pursuant to Section 4.04(b).
"United States Securities Person" shall mean any "U.S. person"
as
defined in Rule 902(k) of Regulation S.
"United States Tax Person" shall mean a citizen or resident of
the
United States, a corporation, partnership or other entity created
or organized
in, or under the laws of, the United States or any State thereof or
the District
of Columbia, or an estate whose income from sources without the
United States is
includible in gross income for United States federal income tax
purposes
regardless of its connection with the conduct of a trade or
business within the
United States, 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 such United States Tax Persons have the authority to control
all
substantial decisions of the trust (or to the extent provided in
the Treasury
regulations, if the trust was in existence on August 20, 1996 and
elected to be
treated as a United States person), all within the meaning of
Section
7701(a)(30) of the Code.
"Unliquidated Advance" shall mean 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 respect of which the Advance was made.
"Upper-Tier Distribution Account" shall mean the subaccount
deemed
to be a part of the Distribution Account and maintained by the
Trustee pursuant
to Section 3.04(b).
"Upper-Tier REMIC" One of the two separate REMICs comprising
the
Trust Fund, the assets of which consist of the Uncertificated
Lower-Tier
Interests and such amounts as shall from time to time be held in
the Upper-Tier
Distribution Account.
"Voting Rights" shall mean the portion of the voting rights of
all
of the Certificates that is allocated to any Certificate. At all
times during
the term of this Agreement, 99% of the Voting Rights shall be
allocated among
the Holders of the various Classes of the Principal Balance
Certificates (other
than the Class AMP-E Certificates) in proportion to the respective
Class
Principal Balances of their Certificates, and 1% of the Voting
Rights shall be
allocated to the Holders of the Class IO Certificates. Voting
Rights allocated
to a Class of Certificateholders shall be allocated among such
Certificateholders in proportion to the Percentage Interests
evidenced by their
respective Certificates. No Voting Rights shall be allocated to the
Class AMP-E,
Class R-I or Class R-II Certificates.
"WBCMT 2006-C28 Depositor" shall have the meaning assigned
thereto
in the Preliminary Statement.
"WBCMT 2006-C28 Master Servicer" shall have the meaning
assigned
thereto in the Preliminary Statement.
"WBCMT 2006-C28 PSA" shall have the meaning assigned thereto in
the
Preliminary Statement.
"WBCMT 2006-C28 Special Servicer" shall have the meaning
assigned
thereto in the Preliminary Statement.
"WBCMT 2006-C28 Trustee" shall have the meaning assigned thereto
in
the Preliminary Statement.
"Weighted Average Net Mortgage Rate" shall mean, with respect to
any
Distribution Date, the weighted average of the Net Mortgage Rates
of the Pooled
Mortgage Loans as of the first day of the related Collection
Period, weighted on
the basis of their respective Stated Principal Balances as of the
first day of
such Collection Period (after giving effect to any payments
received during any
applicable grace period); provided, that in the case of each Loan
REMIC Loan,
"Pooled Mortgage Loan" shall refer to the related Loan REMIC
Regular Interest.
"Workout-Delayed Reimbursement Amounts" shall mean 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 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 becomes an obligation of the Mortgagor to pay such amount
under the
terms of the modified Mortgage Loan documents.
"Workout Fee" shall mean the fee designated as such in, and
payable
to the Special Servicer with respect to certain collections on each
Corrected
Mortgage Loan pursuant to, Section 3.11(b).
"Workout Fee Rate" shall mean, with respect to each Corrected
Mortgage Loan as to which a Workout Fee is payable, 1.00%.
"Yield Maintenance Charge" shall mean the payments paid or
payable,
as the context requires, as the result of a Principal Prepayment
on, or other
early collection of principal of, a Mortgage Loan, which payments
are not
otherwise due thereon in respect of principal or interest and have
been
calculated (based on scheduled payments of interest and/or
principal 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 which shall generate
the lowest
discount rate or reinvestment yield for the purposes thereof.
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 related Stated Maturity Date), the Master Servicer shall use
the applicable
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 fourteen (14) 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 = (12 X [{(1+ "BEY"/2) ^1/6}-1]) X 100, 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]) X 100 where .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%..
Section 1.02 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as
well as the singular, and the use of any gender herein shall be
deemed to include the other gender;
(ii) accounting
terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(iii) references herein to "Articles," "Sections,"
"Subsections," "Paragraphs" and other subdivisions without
reference
to a document are to designated Articles, Sections,
Subsections,
Paragraphs and other subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to
a Section is a reference to such Subsection as contained in the
same
Section in which the reference appears, and this rule shall
also
apply to Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," "hereto,"
"hereby" and other words of similar import refer to this
Agreement
as a whole and not to any particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
Section 1.03 Certain Adjustments to the Principal Distributions
on
the Certificates.
(a) If any party hereto is reimbursed out of general collections
on
the Mortgage Pool on deposit in the Pool Custodial Account for any
unreimbursed
Advances that have been or are determined to be Nonrecoverable
Advances
(together with interest accrued and payable thereon pursuant to
Section 3.12(b)
or Section 4.03(d), as applicable, to the extent such interest was
paid
hereunder from a source other than Default Charges Received by the
Trust on the
Mortgage Pool), then (for purposes of calculating distributions on
the
Certificates) each such reimbursement and payment of interest shall
be deemed to
have been made:
(i) first, out of any amounts then on deposit in the Pool
Custodial
Account
that represent payments or other collections of principal
Received
by the
Trust with respect to the Sub-Pool to which such Mortgage Loan
generating
the Nonrecoverable Advance belongs that, but for their
application to reimburse a Nonrecoverable Advance and/or to pay
interest
thereon,
would be included in the Available Distribution Amount for the
related
Distribution Date;
(ii) second, out of any amounts representing payments or other
collections of principal Received by the Trust with respect to the
other
Sub-Pool
that, but for their application to reimburse a Nonrecoverable
Advance
and/or to pay interest thereon, would be included in the
Available
Distribution Amount for any subsequent Distribution Date;
(iii) third, out of any amounts representing any other payments
or
collections Received by the Trust with respect to the Sub-Pool to
which
such
Mortgage Loan generating the Nonrecoverable Advance belongs that,
but
for their
application to reimburse a Nonrecoverable Advance and/or to pay
interest
thereon, would be included in the Available Distribution Amount
for any
subsequent Distribution Date;
(iv) fourth, out of any amounts then on deposit in the Pool
Custodial
Account that represent any other payments or other collections
Received
by the Trust with respect to the other Sub-Pool that, but for
their
application to reimburse a Nonrecoverable Advance and/or to pay
interest
thereon, would be included in the Available Distribution Amount
for the
related Distribution Date;
(v) fifth, out of any amounts representing any other payments
or
other
collections Received by the Trust with respect to the other
Sub-Pool
that, but
for their application to reimburse a Nonrecoverable Advance
and/or to
pay interest thereon, would be included in the Available
Distribution Amount for any subsequent Distribution Date; and
(vi) sixth, out of any other amounts then on deposit in the
Pool
Custodial
Account that may be available to reimburse the subject
Nonrecoverable Advance and/or to pay interest thereon.
(b) If and to the extent that any payment or other collection
of
principal of any Mortgage Loan or REO Mortgage Loan is deemed to be
applied in
accordance with Section 1.03(a)(i) to reimburse a Nonrecoverable
Advance or to
pay interest thereon or is applied to reimburse a Workout-Delayed
Reimbursement
Amount, and further if and to the extent that such payment or other
collection
of principal constitutes part of the Principal Distribution Amount
for any
Distribution Date, then for purposes of calculating the Adjusted
Principal
Distribution Amount, the Sub-Pool 1 Principal Distribution Amount
and the
Sub-Pool 2 Principal Distribution Amount for such Distribution Date
and for such
Sub-Pool, as applicable, the amount of such payment or other
collection of
principal shall be subtracted from the Principal Distribution
Amount for such
Distribution Date and the applicable Sub-Pool.
(c) If and to the extent that any Advance is determined to be a
Nonrecoverable Advance, such Advance or interest thereon is
reimbursed out of
general principal collections on the Mortgage Pool as contemplated
by Section
1.03(a) above or if any Workout-Delayed Reimbursement Amount is
paid from
principal collections on the Mortgage Pool, and the particular item
for which
such Advance was originally made is subsequently collected (in
whole or in part)
out of payments or other collections in respect of the related
Mortgage Loan or
REO Mortgage Loan (such item, and interest thereon, to the extent
such interest
was paid out of general collections on the Mortgage Pool, if
