EXHIBIT 4.1
================================================================================
WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor
and
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer
and
LNR PARTNERS, INC.
Special Servicer
and
WELLS FARGO BANK, N.A.
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of March 1, 2006
------------------------------
$4,229,859,030
Commercial Mortgage Pass-Through Certificates
Series 2006-C23
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms................................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01
Conveyance of Mortgage Loans.................................
Section 2.02
Acceptance of the Trust Fund by Trustee......................
Section 2.03 Mortgage
Loan Seller's Repurchase or Substitution
of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties..................
Section 2.04
Representations and Warranties of Depositor..................
Section 2.05
Conveyance of Mortgage Loans; Acceptance of REMIC I
and Additional Interest Grantor Trust by Trustee............
Section 2.06 Issuance
of the REMIC I Regular Interests;
Execution, Authentication and Delivery of Class
R-I Certificates............................................
Section 2.07
Conveyance of REMIC I Regular Interests; Acceptance
of REMIC II by Trustee......................................
Section 2.08
Execution, Authentication and Delivery of REMIC II
Certificates................................................
Section 2.09
Execution, Authentication and Delivery of Class Z
Certificates................................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01
Administration of the Mortgage Loans.........................
Section 3.02
Collection of Mortgage Loan Payments.........................
Section 3.03
Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts........................
Section 3.04
Certificate Account, Interest Reserve Account,
Gain-on-Sale Reserve Account, Additional Interest
Account, Distribution Account and Companion
Distribution Account........................................
Section 3.05 Permitted
Withdrawals from the Certificate Account,
Distribution Account, Interest Reserve Account,
Additional Interest Account, Gain-on-Sale Reserve
Account and Companion Distribution Account..................
Section 3.06
Investment of Funds in the Servicing Accounts,
Reserve Accounts, Certificate Account, Interest
Reserve Account, Distribution Account, Companion
Distribution Account, Additional Interest Account,
Gain-on-Sale Reserve Account and REO Account................
Section 3.07
Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage.............................
Section 3.08
Enforcement of Alienation Clauses............................
Section 3.09
Realization Upon Defaulted Mortgage Loans; Required
Appraisals..................................................
Section 3.10 Trustee
and Custodian to Cooperate; Release of
Mortgage Files..............................................
Section 3.11 Servicing
Compensation.......................................
Section 3.12 Property
Inspections; Collection of Financial
Statements; Delivery of Certain Reports.....................
Section 3.13 Annual
Reports on Assessment of Compliance with
Servicing Criteria and Annual Statement as to
Compliance..................................................
Section 3.14
Attestation by Independent Public Accountants................
Section 3.15 Access to
Certain Information................................
Section 3.16 Title to
REO Property; REO Account...........................
Section 3.17
Management of REO Property...................................
Section 3.18
Resolution of Defaulted Mortgage Loans and REO
Properties..................................................
Section 3.19
Additional Obligations of Master Servicer and
Special Servicer............................................
Section 3.20
Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer
of Servicing Between Master Servicer and
Special Servicer; Record Keeping............................
Section 3.22
Sub-Servicing Agreements.....................................
Section 3.23
Representations and Warranties of Master Servicer
and Special Servicer........................................
Section 3.24
Sub-Servicing Agreement Representation and Warranty..........
Section 3.25
Designation of Controlling Class Representative..............
Section 3.26 Companion
Paying Agent.......................................
Section 3.27 Companion
Register...........................................
Section 3.28 Future
Debt Secured by Interests in Related
Borrowers...................................................
Section 3.29 Certain
Matters Relating to the Future
Securitization of the Prime Outlets Pool Pari
Passu Companion Loan........................................
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
Section 4.01
Distributions................................................
Section 4.02
Statements to Certificateholders; CMSA Loan
Periodic Update File........................................
Section 4.03 P&I
Advances.................................................
Section 4.04
Allocation of Realized Losses and Additional Trust
Fund Expenses; Allocation of Certificate Deferred
Interest; Allocation of Appraisal Reduction
Amounts.....................................................
Section 4.05
Calculations.................................................
Section 4.06 Use of
Agents................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The
Certificates.............................................
Section 5.02
Registration of Transfer and Exchange of
Certificates................................................
Section 5.03
Book-Entry Certificates......................................
Section 5.04
Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons
Deemed Owners........................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
Section 6.01 Liability
of Depositor, Master Servicer and Special
Servicer....................................................
Section 6.02 Merger,
Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.........................
Section 6.03
Limitation on Liability of Depositor, Master
Servicer and Special Servicer...............................
Section 6.04
Resignation of Master Servicer and the Special
Servicer....................................................
Section 6.05 Rights of
Depositor and Trustee in Respect of
Master Servicer and the Special Servicer....................
Section 6.06
Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee......................................
Section 6.07
Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer..............................
Section 6.08
Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.......................................
Section 6.09
Designation of Special Servicer by the Controlling
Class and Controlling Holders...............................
Section 6.10 Master
Servicer or Special Servicer as Owner of a
Certificate.................................................
Section 6.11 The
Controlling Class Representative.........................
ARTICLE VII
DEFAULT
Section 7.01 Events of
Default............................................
Section 7.02 Trustee
to Act; Appointment of Successor.....................
Section 7.03
Notification to Certificateholders and Companion
Holders.....................................................
Section 7.04 Waiver of
Events of Default..................................
Section 7.05
Additional Remedies of Trustee Upon Event of
Default.....................................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of
Trustee............................................
Section 8.02 Certain
Matters Affecting Trustee............................
Section 8.03 Trustee
Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................
Section 8.04 Trustee
May Own Certificates.................................
Section 8.05 Fees and
Expenses of Trustee; Indemnification of
Trustee.....................................................
Section 8.06
Eligibility Requirements for Trustee.........................
Section 8.07
Resignation and Removal of Trustee...........................
Section 8.08 Successor
Trustee............................................
Section 8.09 Merger or
Consolidation of Trustee...........................
Section 8.10
Appointment of Co-Trustee or Separate Trustee................
Section 8.11
Appointment of Custodians....................................
Section 8.12
Appointment of Authenticating Agents.........................
Section 8.13 Access to
Certain Information................................
Section 8.14
Appointment of REMIC Administrators..........................
Section 8.15
Representations and Warranties of Trustee....................
Section 8.16
Appointment of the Paying Agent..............................
Section 8.17 Reports
to the Securities and Exchange Commission;
Available Information.......................................
Section 8.18
Maintenance of Mortgage File.................................
ARTICLE IX
TERMINATION
Section 9.01
Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02
Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC
Administration.........................................
Section 10.02 Administration of the Additional Interest Grantor
Trust.......................................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment....................................................
Section 11.02 Recordation of Agreement;
Counterparts.......................
Section 11.03 Limitation on Rights of
Certificateholders...................
Section 11.04 Governing
Law................................................
Section 11.05
Notices......................................................
Section 11.06 Severability of
Provisions...................................
Section 11.07 Grant of a Security
Interest.................................
Section 11.08 Streit
Act...................................................
Section 11.09 Successors and Assigns;
Beneficiaries........................
Section 11.10 Article and Section
Headings.................................
Section 11.11 Notices to Rating
Agencies...................................
Section 11.12 Complete
Agreement...........................................
<PAGE>
EXHIBITS
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Exhibit Description
Exhibit No.
Section Reference
--------------------------------------------------------------------------------
Form of Class A-1 Certificate
A-1
Section 1.01 Definition of
"Class A-1 Certificate"
--------------------------------------------------------------------------------
Form of Class A-2 Certificate
A-2
Section 1.01 Definition of
"Class A-2 Certificate"
--------------------------------------------------------------------------------
Form of Class A-3 Certificate
A-3
Section 1.01 Definition of
"Class A-3 Certificate"
--------------------------------------------------------------------------------
Form of Class A-PB Certificate A-4
Section 1.01 Definition of
"Class A-PB Certificate"
--------------------------------------------------------------------------------
Form of Class A-4 Certificate
A-5
Section 1.01 Definition of
"Class A-4 Certificate"
--------------------------------------------------------------------------------
Form of Class A-5 Certificate
A-6
Section 1.01 Definition of
"Class A-5 Certificate"
--------------------------------------------------------------------------------
Form of Class A-1A Certificate A-7
Section 1.01 Definition of
"Class A-1A Certificate"
--------------------------------------------------------------------------------
Form of Class X-C Certificate
A-8
Section 1.01 Definition of
"Class X-C Certificate"
--------------------------------------------------------------------------------
Form of Class X-P Certificate
A-9
Section 1.01 Definition of
"Class X-P Certificate"
--------------------------------------------------------------------------------
Form of Class A-M Certificate A-10
Section 1.01 Definition of
"Class A-M Certificate"
--------------------------------------------------------------------------------
Form of Class A-J Certificate A-11
Section 1.01 Definition of
"Class A-J Certificate"
--------------------------------------------------------------------------------
Form of Class B Certificate
A-12
Section 1.01 Definition of
"Class B Certificate"
--------------------------------------------------------------------------------
Form of Class C Certificate
A-13
Section 1.01 Definition of
"Class C Certificate"
--------------------------------------------------------------------------------
Form of Class D Certificate
A-14
Section 1.01 Definition of
"Class D Certificate"
--------------------------------------------------------------------------------
Form of Class E Certificate
A-15
Section 1.01 Definition of
"Class E Certificate"
--------------------------------------------------------------------------------
Form of Class F Certificate
A-16
Section 1.01 Definition of
"Class F Certificate"
--------------------------------------------------------------------------------
Form of Class G Certificate
A-17
Section 1.01 Definition of
"Class G Certificate"
--------------------------------------------------------------------------------
Form of Class H Certificate
A-18
Section 1.01 Definition of
"Class H Certificate"
--------------------------------------------------------------------------------
Form of Class J Certificate
A-19
Section 1.01 Definition of
"Class J Certificate"
--------------------------------------------------------------------------------
Form of Class K Certificate
A-20
Section 1.01 Definition of
"Class K Certificate"
--------------------------------------------------------------------------------
Form of Class L Certificate
A-21
Section 1.01 Definition of
"Class L Certificate"
--------------------------------------------------------------------------------
Form of Class M Certificate
A-22
Section 1.01 Definition of
"Class M Certificate"
--------------------------------------------------------------------------------
Form of Class N Certificate
A-23
Section 1.01 Definition of
"Class N Certificate"
--------------------------------------------------------------------------------
Form of Class O Certificate
A-24
Section 1.01 Definition of
"Class O Certificate"
--------------------------------------------------------------------------------
Form of Class P Certificate
A-25
Section 1.01 Definition of
"Class P Certificate"
--------------------------------------------------------------------------------
Form of Class Q Certificate
A-26
Section 1.01 Definition of
"Class Q Certificate"
--------------------------------------------------------------------------------
Form of Class S Certificate
A-27
Section 1.01 Definition of
"Class S Certificate"
--------------------------------------------------------------------------------
Form of Class R-I
Certificate A-28
Section 1.01 Definition of
"Class R-I
Certificate"
--------------------------------------------------------------------------------
Form of Class R-II Certificate A-29
Section 1.01 Definition of
"Class R-II
Certificate"
--------------------------------------------------------------------------------
Form of Class Z Certificate
A-30
Section 1.01 Definition of
"Class Z
Certificate"
--------------------------------------------------------------------------------
Mortgage Loan Schedule
B
Section 1.01 Definition of
"Mortgage Loan Schedule"
--------------------------------------------------------------------------------
Schedule of Exceptions to
C-1
Section 2.02(a)
Mortgage File
Delivery
--------------------------------------------------------------------------------
Form of Custodial
C-2
Section 2.02(b)
Certification
--------------------------------------------------------------------------------
Form of Master Servicer
D-1
Section 1.01 Definition of
Request for Release
"Request for Release";
Section 2.03(b);
Section 3.10(a); and
Section 3.10(b)
--------------------------------------------------------------------------------
Form of Special Servicer
D-2
Section 1.01 Definition of
Request for Release
"Request for Release";
Section 3.10(b)
--------------------------------------------------------------------------------
Calculation of NOI/Debt
E
Section 1.01 Definition of "Net
Service Coverage
Ratios
Operating Income"
--------------------------------------------------------------------------------
Form of Transferor Certificate F-1
Section 5.02(b)
--------------------------------------------------------------------------------
Form of Transferee
F-2
Section 5.02(b)
Certificate for
QIBs
--------------------------------------------------------------------------------
Form of Transferee
F-3
Section 5.02(b)
Certificate for
Non-QIBs
--------------------------------------------------------------------------------
Form of Transferee Certificate
G
Section 5.02(c)
--------------------------------------------------------------------------------
Form of Transfer Affidavit
H-1
Section 5.02(d)(i)(B)
and Agreement Pursuant
to
Section
5.02(d)(i)(B)
--------------------------------------------------------------------------------
Form of Transferor
H-2
Section 5.02(d)(i)(D)
Certificate Pursuant
to
Section
5.02(d)(i)(D)
--------------------------------------------------------------------------------
Form of Notice and
I-1
Section 6.09
Acknowledgment
--------------------------------------------------------------------------------
Form of Acknowledgment of
I-2
Section 6.09
Proposed Special
Servicer
--------------------------------------------------------------------------------
[RESERVED]
J
--------------------------------------------------------------------------------
Form of Certificateholder
K-1
Section 1.01 Definition of
Confirmation
Certificate
"Privileged Person";
Request by Beneficial
Holder
Section 3.15(a)
--------------------------------------------------------------------------------
Form of Prospective Purchaser
K-2
Section 1.01 Definition of
Certificate
"Privileged Person";
Section 3.15(a)
--------------------------------------------------------------------------------
Initial Companion Holders
L
Section 3.27
--------------------------------------------------------------------------------
Form of Purchase Option Notice
M
Section 3.18(e)
--------------------------------------------------------------------------------
Form of Defeasance Certificate
N
Section 3.20(h)
--------------------------------------------------------------------------------
Form of Depositor
O
Section 8.17(k)(v); Section
Certification
8.17(n)
--------------------------------------------------------------------------------
Form of Trustee Certification
P
Section 8.17(d)
--------------------------------------------------------------------------------
Form of Master Servicer
Q-1
Section 8.17(d)
Certification
--------------------------------------------------------------------------------
Form of Special Servicer
Q-2
Section 8.17(d)
Certification
--------------------------------------------------------------------------------
Class A-PB Planned Principal
R
Section 1.01 Definition of
Balance Schedule
"Class A-PB Planned Principal
Amount"
--------------------------------------------------------------------------------
Relevant Servicing Criteria
S
Section 1.01 Definition of
"Relevant Servicing Criteria"
--------------------------------------------------------------------------------
Class X-P Reference Rate
T
Section 1.01 Definition of
Schedule
"Class X-P Reference Rate"
--------------------------------------------------------------------------------
Additional Form 10-D
U
Section 8.17(i)
Disclosure
--------------------------------------------------------------------------------
Additional Disclosure
V
Section 1.01 Definition of
Notification
"Additional Disclosure
Notification"; Section 8.17(i)
--------------------------------------------------------------------------------
Additional Form 10-K
W
Section 8.17(k)
Disclosure
--------------------------------------------------------------------------------
Form 8-K Disclosure
X
Section 8.17(j)
Information
--------------------------------------------------------------------------------
Sub-Servicer List
Y
Section 8.17(f)
--------------------------------------------------------------------------------
<PAGE>
POOLING AND SERVICING AGREEMENT
This Pooling and Servicing Agreement (the "Agreement") is dated
and effective as of March 1, 2006, among WACHOVIA COMMERCIAL
MORTGAGE
SECURITIES, INC., as Depositor, WACHOVIA BANK, NATIONAL
ASSOCIATION, as
Master Servicer, LNR PARTNERS, INC., as Special Servicer and WELLS
FARGO
BANK, N.A., as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through
certificates
(collectively, the "Certificates"), to be issued hereunder in
multiple
classes (each, a "Class"), which in the aggregate will evidence the
entire
beneficial ownership interest in a trust fund (the "Trust Fund") to
be
created hereunder, the primary assets of which will be the Mortgage
Loans.
REMIC I
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of all of the Mortgage Loans
(exclusive
of that portion of the interest payments thereon that constitutes
Additional
Interest) and certain other related assets subject to this
Agreement as a
REMIC for federal income tax purposes, and such segregated pool of
assets
will be designated as REMIC I. The Class R-I Certificates will
represent the
sole class of "residual interests" in REMIC I for purposes of the
REMIC
Provisions under federal income tax law.
REMIC II
As provided herein, the Trustee will elect to treat the
segregated pool of assets consisting of all of the REMIC I Regular
Interests
as a REMIC for federal income tax purposes, and such segregated
pool of
assets will be designated as REMIC II. The Class R-II Certificates
will
evidence the sole class of "residual interests" in REMIC II for
purposes of
the REMIC Provisions under federal income tax law. For federal income tax
purposes, each Class of the Regular Certificates will be designated
as a
separate "regular interest" in REMIC II for purposes of the REMIC
Provisions
under federal income tax law.
The following table sets forth the Class or Component
designation, the original REMIC I Principal Balance for each
corresponding
REMIC I Regular Interest (the "Corresponding REMIC I Regular
Interest"), the
Corresponding Components of the Class X Certificates (the
"Corresponding
Components") and the Original Class Principal Balance for each
Class of
Sequential Pay Certificates (the "Corresponding Certificates").
<PAGE>
--------------------------------------------------------------------------------
Corresponding
Corresponding
Original REMIC I
Original
Components of
Class Regular
REMIC I
REMIC I
Class
X
Corresponding
Principal
Interests
Principal
Pass-Through
Certificates
Certificates
Balance (1)
Balance Rate
(1)
--------------------------------------------------------------------------------
Class A-1
$105,862,000
LA-1-1 $6,097,000
(2)
X-A-1-1
--------------------------------------------------------------------------------
LA-1-2
$11,638,000
X-A-1-2
--------------------------------------------------------------------------------
LA-1-3
$67,613,000
X-A-1-3
--------------------------------------------------------------------------------
LA-1-4
$20,514,000
X-A-1-4
--------------------------------------------------------------------------------
Class A-2
$137,307,000
LA-2-1
$56,936,000 (2)
X-A-2-1
--------------------------------------------------------------------------------
LA-2-2
$77,964,000
X-A-2-2
--------------------------------------------------------------------------------
LA-2-3 $2,407,000
X-A-2-3
--------------------------------------------------------------------------------
Class A-3
$62,700,000 LA-3
$62,700,000 (2)
X-A-3
--------------------------------------------------------------------------------
Class A-PB
$252,071,000 LA-PB-1
$24,569,000 (2)
X-A-PB-1
--------------------------------------------------------------------------------
LA-PB-2
$74,790,000
X-A-PB-2
--------------------------------------------------------------------------------
LA-PB-3
$72,230,000
X-A-PB-3
--------------------------------------------------------------------------------
LA-PB-4
$80,482,000
X-A-PB-4
--------------------------------------------------------------------------------
Class A-4
$1,280,716,000 LA-4-1 $1,761,000
(2)
X-A-4-1
--------------------------------------------------------------------------------
LA-4-2
$151,011,000
X-A-4-2
--------------------------------------------------------------------------------
LA-4-3
$68,199,000
X-A-4-3
--------------------------------------------------------------------------------
LA-4-4
$65,293,000
X-A-4-4
--------------------------------------------------------------------------------
LA-4-5
$69,135,000
X-A-4-5
--------------------------------------------------------------------------------
LA-4-6
$100,384,000
X-A-4-6
--------------------------------------------------------------------------------
LA-4-7
$824,933,000
X-A-4-7
--------------------------------------------------------------------------------
Class A-5
$500,000,000 LA-5 $500,000,000
X-A-5
--------------------------------------------------------------------------------
Class A-1A
$622,245,000 LA-1A-1
$783,000
(2)
X-A-1A-1
--------------------------------------------------------------------------------
LA-1A-2 $993,000
X-A-1A-2
--------------------------------------------------------------------------------
LA-1A-3
$11,443,000
X-A-1A-3
--------------------------------------------------------------------------------
LA-1A-4
$13,073,000
X-A-1A-4
--------------------------------------------------------------------------------
LA-1A-5
$12,837,000
X-A-1A-5
--------------------------------------------------------------------------------
LA-1A-6
$12,468,000
X-A-1A-6
--------------------------------------------------------------------------------
LA-1A-7
$12,568,000
X-A-1A-7
--------------------------------------------------------------------------------
LA-1A-8
$12,178,000
X-A-1A-8
--------------------------------------------------------------------------------
LA-1A-9
$12,214,000
X-A-1A-9
--------------------------------------------------------------------------------
LA-1A-10
$21,320,000
X-A-1A-10
--------------------------------------------------------------------------------
LA-1A-11
$12,284,000
X-A-1A-11
--------------------------------------------------------------------------------
LA-1A-12
$14,112,000
X-A-1A-12
--------------------------------------------------------------------------------
LA-1A-13
$11,473,000
X-A-1A-13
--------------------------------------------------------------------------------
LA-1A-14
$15,574,000
X-A-1A-14
--------------------------------------------------------------------------------
LA-1A-15
$458,925,000
X-A-1A-15
--------------------------------------------------------------------------------
Class A-M
$422,986,000 LA-M $422,986,000
(2)
X-A-M
--------------------------------------------------------------------------------
Class A-J
$274,941,000 LA-J $274,941,000
(2)
X-A-J
--------------------------------------------------------------------------------
Class B
$37,011,000 LB
$37,011,000 (2)
X-B
--------------------------------------------------------------------------------
Class C
$52,873,000 LC
$52,873,000 (2)
X-C
--------------------------------------------------------------------------------
Class D
$37,011,000 LD
$37,011,000 (2)
X-D
--------------------------------------------------------------------------------
Class E
$31,724,000 LE-1
$28,565,000 (2)
X-E-1
--------------------------------------------------------------------------------
LE-2 $3,159,000
X-E-2
--------------------------------------------------------------------------------
Class F
$42,299,000 LF-1
$10,321,000 (2)
X-F-1
--------------------------------------------------------------------------------
LF-2
$30,897,000
X-F-2
--------------------------------------------------------------------------------
LF-3 $1,081,000
X-F-3
--------------------------------------------------------------------------------
Class G
$52,873,000 LG-1
$31,052,000 (2)
X-G-1
--------------------------------------------------------------------------------
LG-2
$21,821,000
X-G-2
--------------------------------------------------------------------------------
Class H
$52,873,000 LH-1
$15,258,000 (2)
X-H-1
--------------------------------------------------------------------------------
LH-2
$35,317,000
X-H-2
--------------------------------------------------------------------------------
LH-3 $2,298,000
X-H-3
--------------------------------------------------------------------------------
Class J
$58,161,000 LJ-1
$36,579,000 (2)
X-J-1
--------------------------------------------------------------------------------
LJ-2
$21,582,000
X-J-2
--------------------------------------------------------------------------------
Class K
$52,873,000 LK-1
$11,530,000 (2)
X-K-1
--------------------------------------------------------------------------------
LK-2
$39,627,000
X-K-2
--------------------------------------------------------------------------------
LK-3 $1,716,000
X-K-3
--------------------------------------------------------------------------------
Class L
$10,575,000 LL
$10,575,000 (2)
X-L
--------------------------------------------------------------------------------
Class M
$21,149,000 LM
$21,149,000 (2)
X-M
--------------------------------------------------------------------------------
Class N
$15,862,000 LN
$15,862,000 (2)
X-N
--------------------------------------------------------------------------------
Class O
$10,575,000 LO
$10,575,000 (2)
X-O
--------------------------------------------------------------------------------
Class P
$15,862,000 LP
$15,862,000 (2)
X-P
--------------------------------------------------------------------------------
Class Q
$15,862,000 LQ
$15,862,000 (2)
X-Q
--------------------------------------------------------------------------------
Class S
$63,448,029 LS
$63,448,029 (2)
X-S
--------------------------------------------------------------------------------
------------
(1) The REMIC I
Regular Interest or Interests and the Component or Components
of the
Class X Certificates that correspond to any particular Class of
Sequential
Pay Certificates also correspond to each other and,
accordingly, constitute the Corresponding REMIC I Regular Interests
and
the
Corresponding Components (if any), respectively, with respect to
each
other.
(2) The Weighted
Average Net Mortgage Rate.
The
portion of the Trust Fund consisting of the Additional
Interest and amounts held from time to time in the Additional
Interest
Account that represent Additional Interest shall be treated as a
grantor
trust (the "Additional Interest Grantor Trust") for federal income
tax
purposes. The Class Z
Certificates represent undivided beneficial interests
in such Additional Interest Grantor Trust. As provided herein, the
Trustee
shall take all actions necessary to ensure that the portions of the
Trust
Fund consisting of the Additional Interest Grantor Trust maintain
their
status as a "grantor trust" under federal income tax law and not be
treated
as part of either REMIC I or REMIC II.
Each of the six (6) mortgage loans referred to in this
Agreement
as the Prime Outlets Pool Pari Passu Companion Loan, the Hyatt
Center Pari
Passu Companion Loan, the 620 Avenue of the Americas Companion
Loan, the
Hohokam Towers Companion Loan, the DEA/ATF Building Companion Loan
and the
SSA-Austin, TX Companion Loan (each, a "Companion Loan" and
collectively the
"Companion Loans") are not part of the Trust Fund but are secured
by
corresponding Mortgages that secure certain related Mortgage Loans
that are
identified on the Mortgage Loan Schedule as the Prime Outlets Pool
Loan (loan
number 1), Hyatt Center Loan (loan number 4), the 620 Avenue of the
Americas
Loan (loan number 3), the Hohokam Towers Loan (loan number 22), the
DEA/ATF
Building Loan (loan number 87) and the SSA-Austin, TX Loan (loan
number 168)
(each, a "Co-Lender Loan" and collectively, the "Co-Lender Loans")
that are
part of the Trust Fund.
The Prime Outlets Pool Loan and the Prime Outlet Pool Pari
Passu
Companion Loan are pari passu with each other. The Hyatt Center Loan and the
Hyatt Center Pari Passu Companion Loan are pari passu with each
other. As
and to the extent provided herein, each of the Companion Loans
(other than
the Hyatt Center Pari Passu Companion Loan) will be serviced and
administered
in accordance with this Agreement. The Hyatt Center Loan and the
Hyatt
Center Pari Passu Companion Loan will be serviced and administered
in
accordance with the Pooling and Servicing Agreement (the "2005-C22
Pooling
and Servicing Agreement"), dated as of December 1, 2005, by and
among
Wachovia Commercial Mortgage Securities, Inc., as depositor (the
"2005-C22
Depositor"), Wachovia Bank, National Association, as master
servicer (the
"2005-C22 Master Servicer"), CWCapital Asset Management LLC, as
special
servicer (the "2005-C22 Special Servicer"), and Wells Fargo Bank,
N.A., as
trustee (the "2005-C22 Trustee"), pursuant to which the Wachovia
Bank
Commercial Mortgage Trust Commercial Mortgage Pass-Through
Certificates,
Series 2005-C22 were issued. Amounts attributable to the
Companion Loans
will not be assets of the Trust Fund and will be owned by the
Companion
Holders.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the
Trustee agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context
otherwise
requires, shall have the meanings specified in this Article.
"2005-C22 Controlling Class Representative": The "Controlling
Class Representative" as defined in the 2005-C22 Pooling and
Servicing
Agreement.
"2005-C22 Depositor": As defined in the Preliminary Statement.
"2005-C22 Majority Subordinate Certificateholder": The
"Majority
Subordinate Certificateholder" as defined in the 2005-C22 Pooling
and
Servicing Agreement.
"2005-C22 Master Servicer": As defined in the Preliminary
Statement.
"2005-C22 Mortgage Loan Purchase Agreement": The "Mortgage Loan
Purchase Agreement" as defined in the 2005-C22 Pooling and
Servicing
Agreement.
"2005-C22 Pooling and Servicing Agreement": As defined in the
Preliminary Statement.
"2005-C22 Serviced Mortgage Loan": The Hyatt Center Loan.
"2005-C22 Special Servicer": As defined in the Preliminary
Statement.
"2005-C22 Trustee": As defined in the Preliminary Statement.
"30/360 Basis": The accrual of interest calculated on the basis
of a 360-day year consisting of twelve 30-day months.
"620 Avenue of the Americas Companion Loan": That certain
mortgage loan evidenced by a note, which is not an asset of the
Trust Fund,
secured by the Mortgaged Property securing the 620 Avenue of the
Americas
Loan.
"620 Avenue of the Americas Intercreditor Agreement": The
Intercreditor and Servicing Agreement, dated as of January 13, 2006
by and
between Wachovia Bank, National Association, as A-Note Holder and
SLG 620
Sixth Funding LLC, as B-Note Holder relating to the 620 Avenue of
the
Americas Loan Pair.
"620 Avenue of the Americas Loan": That certain Mortgage Loan
which is included in the Trust Fund (identified as loan number 3 on
the
Mortgage Loan Schedule).
"620 Avenue of the Americas Loan Pair": The 620 Avenue of the
Americas Loan, together with the 620 Avenue of the Americas
Companion Loan.
"Accrued Certificate Interest": With respect to any Class of
Regular Certificates (other than the Class X Certificates) for
any
Distribution Date, one month's interest at the Pass-Through Rate
applicable
to such Class of Certificates for such Distribution Date, accrued
for the
related Interest Accrual Period on the related Class Principal
Balance
outstanding immediately prior to such Distribution Date; and, with
respect to
the Class X-C and Class X-P Certificates for any Distribution Date,
the sum
of the Accrued Component Interest for the related Interest Accrual
Period for
all of their respective Components for such Distribution Date.
Accrued
Certificate Interest shall be calculated on a 30/360 Basis and,
with respect
to any Class of Regular Certificates for any Distribution Date,
shall be
deemed to accrue during the calendar month preceding the month in
which such
Distribution Date occurs.
"Accrued Component Interest": With respect to each Component of
the Class X-C and Class X-P Certificates for any Distribution Date,
one
month's interest at the Class X-C Strip Rate or Class X-P Strip
Rate, as the
case may be, applicable to such Component for such Distribution
Date, accrued
on the Component Notional Amount of such Component outstanding
immediately
prior to such Distribution Date. Accrued Component Interest shall
be
calculated on a 30/360 Basis and, with respect to any Component and
any
Distribution Date, shall be deemed to accrue during the calendar
month
preceding the month in which such Distribution Date occurs.
"Acquisition Date": With respect to any REO Property, the first
day on which such REO Property is considered to be acquired by the
Trust Fund
within the meaning of Treasury Regulations Section 1.856-6(b)(1),
which is
the first day on which the Trust Fund is treated as the owner of
such REO
Property for federal income tax purposes.
"Actual/360 Basis": The accrual of interest calculated on the
basis of the actual number of days elapsed during any calendar
month in a
year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues
interest on an Actual/360 Basis and that is identified as an
Actual/360
Mortgage Loan on the Mortgage Loan Schedule.
"Additional Disclosure Notification": The form of notification,
which is attached hereto as Exhibit V, to be included with any
Additional
Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K
Disclosure
Information.
"Additional Form 10-D Disclosure": As defined in Section
8.17(i).
"Additional Form 10-K Disclosure": As defined in Section
8.17(k).
"Additional Interest": With respect to any ARD Loan after its
Anticipated Repayment Date, all interest accrued on the principal
balance of
such ARD Loan at the Additional Interest Rate (the payment of which
interest
shall, under the terms of such Mortgage Loan, be deferred until the
entire
outstanding principal balance of such ARD Loan has been paid),
together with
all interest, if any, accrued at the related Mortgage Rate on such
deferred
interest. For purposes
of this Agreement, Additional Interest on an ARD Loan
or any successor REO Loan shall be deemed not to constitute
principal or any
portion thereof and shall not be added to the unpaid principal
balance or
Stated Principal Balance of such ARD Loan or successor REO
Loan,
notwithstanding that the terms of the related Mortgage Loan
documents so
permit. To the extent
that any Additional Interest is not paid on a current
basis, it shall be deemed to be deferred interest.
"Additional Interest Account": The segregated account, accounts
or subaccounts created and maintained by the Trustee pursuant
to
Section 3.04(d) which shall be entitled "Wells Fargo Bank, N.A., as
Trustee,
in trust for the registered holders of Wachovia Bank Commercial
Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
2006-C23,
Additional Interest Account." The Additional Interest Account
shall not be
an asset of either REMIC created hereunder.
"Additional Interest Grantor Trust": That certain "grantor
trust" (within the meaning of the Grantor Trust Provisions), the
assets of
which are the Additional Interest Grantor Trust Assets.
"Additional Interest Grantor Trust Assets": The segregated pool
of assets consisting of (i) any Additional Interest with respect to
the ARD
Loans after their respective Anticipated Repayment Dates and (ii)
amounts
held from time to time in the Additional Interest Account.
"Additional Interest Rate": With respect to any ARD Loan after
its Anticipated Repayment Date, the incremental increase in the per
annum
rate at which such Mortgage Loan accrues interest after the
Anticipated
Repayment Date (in the absence of defaults) as calculated and as
set forth in
the related Mortgage Loan documents.
"Additional Servicer": Each Affiliate of the Master Servicer
that services any of the Mortgage Loans and each Person who is not
an
Affiliate of the Master Servicer, other than the Special Servicer,
who
services 10% or more of the Mortgage Loans.
"Additional Trust Fund Expense": Any Special Servicing Fees,
Workout Fees, Liquidation Fees and, in accordance with Sections
3.03(d) and
4.03(d), interest payable to the Master Servicer and/or the Trustee
on
Advances (to the extent not offset by Penalty Interest and late
payment
charges), the cost of contracting with a Determination Party as set
forth in
Section 2.03 and amounts payable to the Special Servicer in
connection with
inspections of Mortgaged Properties required pursuant to the first
sentence
of Section 3.12(a) (and not otherwise paid from Penalty Interest
and late
payment charges), as well as (without duplication) any of the
expenses of the
Trust Fund that may be withdrawn (x) pursuant to any of clauses
(ix), (x),
(xiii), (xiv), (xv) and (xxi) of Section 3.05(a) out of general
collections
on the Mortgage Loans and any REO Properties on deposit in the
Certificate
Account or (y) pursuant to clause (ii) or any of clauses (iv)
through (vi) of
Section 3.05(b) out of general collections on the Mortgage Loans
and any REO
Properties on deposit in the Distribution Account; provided that
for purposes
of the allocations contemplated by Section 4.04, no such expense
shall be
deemed to have been incurred by the Trust Fund until such time as
the payment
thereof is actually made from the Certificate Account or the
Distribution
Account, as the case may be.
"Additional Yield Amount": (a) With respect to any Distribution
Date and any Class of Regular Certificates (other than the Class
X
Certificates and any Excluded Class) entitled to distributions of
principal
with respect to Loan Group 1 pursuant to Section 4.01(a) on such
Distribution
Date; provided that a Yield Maintenance Charge and/or Prepayment
Premium was
actually collected on a Mortgage Loan or an REO Loan in such Loan
Group
during the related Collection Period, the product of (a) such
Yield
Maintenance Charge and/or Prepayment Premium multiplied by (b) a
fraction,
which in no event will be greater than one, the numerator of which
is equal
to the positive excess, if any, of (i) the Pass-Through Rate for
such Class
of Regular Certificates then receiving principal over (ii) the
related
Discount Rate, and the denominator of which is equal to the
positive excess,
if any, of (i) the Mortgage Rate for such Mortgage Loan or REO
Loan, as the
case may be, over (ii) the related Discount Rate, multiplied by (c)
a
fraction, the numerator of which is equal to the amount of
principal
distributable on such Class of Regular Certificates on such
Distribution Date
pursuant to Section 4.01(a) with respect to Loan Group 1, and the
denominator
of which is equal to the Loan Group 1 Principal Distribution Amount
for such
Distribution Date.
(b) With respect
to any Distribution Date and any Class of
Regular
Certificates (other than the Class X Certificates and any
Excluded
Class) entitled to distributions of principal with respect to
Loan Group
2 pursuant to Section 4.01(a) on such Distribution Date;
provided
that a Yield Maintenance Charge and/or Prepayment Premium was
actually
collected on a Mortgage Loan or an REO Loan in such Loan Group
during the
related Collection Period, the product of (a) such Yield
Maintenance Charge and/or Prepayment Premium multiplied by (b)
a
fraction,
which in no event will be greater than one, the numerator of
which is
equal to the positive excess, if any, of (i) the Pass-Through
Rate for
such Class of Regular Certificates then receiving principal
over (ii)
the related Discount Rate, and the denominator of which is
equal to
the positive excess, if any, of (i) the Mortgage Rate for such
Mortgage
Loan or REO Loan, as the case may be, over (ii) the related
Discount
Rate, multiplied by (c) a fraction, the numerator of which is
equal to
the amount of principal distributable on such Class of Regular
Certificates on such Distribution Date pursuant to Section 4.01(a)
with
respect to
Loan Group 2, and the denominator of which is equal to the
Loan Group
2 Principal Distribution Amount for such Distribution Date.
(c) For purposes
of the foregoing, to the extent that payments
of
principal on any Class of Regular Certificates (other than the
Class
X
Certificates and any Excluded Class) could be made from
principal
amounts
allocable to Loan Group 1 or principal amounts allocable to
Loan Group
2, the Trustee shall assume that those payments of principal
on that
Class of Regular Certificates are made from amounts allocable
to each
Loan Group, on a pro rata basis in accordance with the
respective
amounts allocable to each Loan Group that were available for
payment on that Class
of Certificates.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event": As defined in Section 10.02(e).
"Adverse REMIC Event": As defined in Section 10.01(h).
"Affiliate": With respect to any specified Person, any other
Person controlling or controlled by or under common control with
such
specified Person. For
the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the
management
and policies of such Person, directly or indirectly, whether
through the
ownership of voting securities, by contract or otherwise and the
terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments hereof and supplements hereto.
"Anticipated Repayment Date": For each ARD Loan, the date
specified in the related Mortgage Note after which the Mortgage
Rate for such
ARD Loan will increase as specified in the related Mortgage Note
(other than
as a result of a default thereunder).
"Appraisal": With respect to any Mortgage Loan, an appraisal of
the related Mortgaged Property from an Independent Appraiser
selected by the
Special Servicer or the Master Servicer prepared in accordance with
12 CFR
ss.225.62 and conducted in accordance with the standards of the
American
Appraisal Institute by an Independent Appraiser.
"Appraisal Reduction Amount": The excess, if any, of (a) the
sum
of (without duplication), as calculated by the Special Servicer as
of the
first Determination Date immediately succeeding the Special
Servicer
obtaining knowledge of the occurrence of the Required Appraisal
Date if no
new Required Appraisal is required or the date on which a Required
Appraisal
(or letter update or internal valuation, if applicable) is obtained
and each
Determination Date thereafter so long as the related Mortgage Loan
remains a
Required Appraisal Mortgage Loan (i) the Stated Principal Balance
of the
subject Required Appraisal Mortgage Loan, (ii) to the extent not
previously
advanced by or on behalf of the Master Servicer or the Trustee (or
with
respect to the 2005-C22 Serviced Mortgage Loan, by the 2005-C22
Master
Servicer), all unpaid interest on the Required Appraisal Mortgage
Loan
(including, for such purposes, the Prime Outlets Pool Pari Passu
Companion
Loan or any related Subordinate Companion Loan serviced hereunder)
through
the most recent Due Date prior to such Determination Date at a per
annum rate
equal to the related Net Mortgage Rate (exclusive of any portion
thereof that
constitutes Additional Interest), (iii) all accrued but unpaid
Servicing Fees
and all accrued but unpaid Additional Trust Fund Expenses in
respect of such
Required Appraisal Mortgage Loan (or, with respect to the 2005-C22
Serviced
Mortgage Loan, any similar fees and expenses (to the extent the
Master
Servicer has actual knowledge of such fees and expenses) payable
under the
2005-C22 Pooling and Servicing Agreement), including, for such
purposes, the
Prime Outlets Pool Pari Passu Companion Loan or any related
Subordinate
Companion Loan serviced hereunder, (iv) all related unreimbursed
Advances and
any Advances related to such Required Appraisal Mortgage Loan
(including, for
such purposes, the Prime Outlets Pool Pari Passu Companion Loan or
any
related Subordinate Companion Loan serviced hereunder) that were
reimbursed
out of general collections from the pool of Mortgage Loans (plus
accrued
interest thereon) made by or on behalf of the Master Servicer or
the Trustee
with respect to such Required Appraisal Mortgage Loan and (v) all
currently
due and unpaid real estate taxes and unfunded improvement reserves
and
assessments, insurance premiums, and, if applicable, ground rents
in respect
of the related Mortgaged Property over (b) an amount equal to the
sum of
(i) the Required Appraisal Value (or in the case of each of the
Prime Outlets
Pool Loan and the 2005-C22 Serviced Mortgage Loan, its pro rata
portion of
the Required Appraisal Value based on its outstanding principal
balance and
the outstanding principal balance of the related Whole Loan) and
(ii) all
escrows, reserves and letters of credit held for the purposes of
reserves
(provided such letters of credit may be drawn upon for reserve
purposes under
the related Mortgage Loan document) held with respect to such
Required
Appraisal Mortgage Loan. If the Special Servicer fails to
obtain a Required
Appraisal (or letter update or internal valuation, if applicable)
within the
time limit described in Section 3.09(a), the Appraisal Reduction
Amount for
the related Required Appraisal Mortgage Loan will equal 25% of
the
outstanding principal balance of such Required Appraisal Mortgage
Loan
(including, for such purposes, the Prime Outlets Pool Pari Passu
Companion
Loan or any related Subordinate Companion Loan serviced hereunder)
to be
adjusted upon receipt of a Required Appraisal or letter update or
internal
valuation, if applicable. In the event a Mortgagor fails to
make a Balloon
Payment on a scheduled maturity date and no Appraisal has been
received
within 120 days of such failure, the Appraisal Reduction Amount for
the
related Mortgage Loan (including, for such purposes, the Prime
Outlets Pool
Pari Passu Companion Loan or any related Subordinate Companion Loan
serviced
hereunder) will equal 25% of the outstanding principal balance of
such
Mortgage Loan (including, for such purposes, the Prime Outlets Pool
Pari
Passu Companion Loan or any related Subordinate Companion Loan
serviced
hereunder), to be adjusted upon receipt of the new Appraisal.
Any Appraisal
Reduction Amount for a Co-Lender Loan shall be allocated as
provided in
Section 4.04(d).
"Appraised Value": With respect to each Mortgaged Property, the
appraised value thereof based upon the most recent Appraisal (or
letter
update or internal valuation, if applicable) that is contained in
the related
Servicing File.
"ARD Loan": Any Mortgage Loan that provides that if the
unamortized principal balance thereof is not repaid on its
Anticipated
Repayment Date, such Mortgage Loan will accrue Additional Interest
at the
rate specified in the related Mortgage Note and the Mortgagor is
required to
apply excess monthly cash flow generated by the related Mortgaged
Property to
the repayment of the outstanding principal balance on such Mortgage
Loan.
"Artesia": Artesia Mortgage Capital Corporation, or its
successor in interest.
"Artesia Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of March 1, 2006,
between the
Depositor and Artesia, and relating to the transfer of the Artesia
Mortgage
Loans to the Depositor.
"Artesia Mortgage Loans": Each of the Mortgage Loans
transferred
and assigned to the Depositor pursuant to the Artesia Mortgage Loan
Purchase
Agreement.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property,
any assignment of leases, rents and profits or similar document or
instrument
executed by the Mortgagor in connection with the origination of the
related
Mortgage Loan.
"Assumed Scheduled Payment": With respect to any Balloon
Mortgage Loan for its Stated Maturity Date (provided that such
Mortgage Loan
has not been paid in full and no other Liquidation Event has
occurred in
respect thereof on or before such Stated Maturity Date) and for any
Due Date
thereafter as of which such Mortgage Loan remains outstanding and
part of the
Trust Fund, the Periodic Payment of principal and/or interest
deemed to be
due in respect thereof on such Due Date that would have been due in
respect
of such Mortgage Loan on such Due Date if the related Mortgagor had
been
required to continue to pay principal in accordance with the
amortization
schedule, if any, and to accrue interest at the Mortgage Rate, in
effect on
the Closing Date and without regard to the occurrence of its Stated
Maturity
Date. With respect to
any REO Loan, for any Due Date therefor as of which
the related REO Property remains part of the Trust Fund, the
Periodic Payment
of principal and/or interest deemed to be due in respect thereof on
such Due
Date that would have been due in respect of the predecessor
Mortgage Loan
(or, if applicable, Companion Loans) on such Due Date had it
remained
outstanding (or, if the predecessor Mortgage Loan was a Balloon
Mortgage Loan
and such Due Date coincides with or follows what had been its
Stated Maturity
Date, the Assumed Scheduled Payment that would have been deemed due
in
respect of the predecessor Mortgage Loan on such Due Date had it
remained
outstanding).
"Authenticating Agent": Any authenticating agent appointed
pursuant to Section 8.12 (or, in the absence of any such
appointment, the
Trustee).
"Available Distribution Amount": With respect to any
Distribution Date, an amount equal to, with respect to each
Mortgage Loan,
(a) the sum (including, with respect to the 2005-C22 Serviced
Mortgage Loan
any amounts remitted by or advanced pursuant to the 2005-C22
Pooling and
Servicing Agreement) of, without duplication, (i) the aggregate of
the
amounts on deposit in the Certificate Account and the Distribution
Account as
of the close of business on the last day of the related Collection
Period and
the amounts collected by or on behalf of the Master Servicer as of
the close
of business on the last day of such Collection Period and required
to be
deposited in the Certificate Account; (ii) the aggregate amount of
any P&I
Advances made by the Master Servicer or the Trustee for
distribution on the
Certificates on such Distribution Date pursuant to Section 4.03;
(iii) the
aggregate amount transferred from the REO Account (if established)
to the
Certificate Account as of the last day of the related Collection
Period, on
or prior to the P&I Advance Date in such month, pursuant to
Section 3.16(c);
(iv) the aggregate amount deposited by the Master Servicer in the
Certificate
Account for such Distribution Date pursuant to Section 3.19 in
connection
with Prepayment Interest Shortfalls; and (v) for each Distribution
Date
occurring in March, and for the final Distribution Date if the
final
Distribution Date occurs in February or, if such year is not a leap
year, in
January, the aggregate of the Interest Reserve Amounts in respect
of each
Interest Reserve Loan deposited into the Distribution Account
pursuant to
Section 3.05(d), net of (b) the portion of the amount described in
subclauses
(a)(i) and (a)(iii) of this definition that represents one or more
of the
following: (i) collected Periodic Payments that are due on a Due
Date
following the end of the related Collection Period, (ii) any
amounts payable
or reimbursable to any Person from the (A) Certificate Account
pursuant to
clauses (ii)-(xvi), (xx), (xxi) and (xxiii) of Section 3.05(a) or
(B) the
Distribution Account pursuant to clauses (ii)-(vii) of Section
3.05(b),
(iii) Prepayment Premiums and Yield Maintenance Charges, (iv)
Additional
Interest, (v) with respect to the Distribution Date occurring in
February of
each year and in January of each year that is not a leap year, the
Interest
Reserve Amounts with respect to the Interest Reserve Loans to be
withdrawn
from the Certificate Account and remitted to the Trustee for
deposit in the
Interest Reserve Account in respect of such Distribution Date and
held for
future distribution pursuant to Section 3.04(c), (vi) for the
initial
Distribution Date only and each Mortgage Loan originated in
February 2006
that has its first Due Date in April 2006, any interest amounts
relating to
the period prior to the Cut-Off Date of such Mortgage Loan payable
to the
related Mortgage Loan Seller; and (vii) any amounts deposited in
the
Certificate Account or the Distribution Account in error.
The Available
Distribution Amount will not include any amounts required to be
distributed
pursuant to the terms of any Intercreditor Agreement or this
Agreement to a
Companion Holder.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the
Closing Date
provides for an amortization schedule extending beyond its Stated
Maturity
Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as
of any date of determination, the Scheduled Payment payable on the
Stated
Maturity Date of such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time to time (Title 11 of the United States Code).
"Bid Allocation": With respect to the Master Servicer and each
Sub-Servicer and the proceeds of any bid pursuant to Section
7.01(c), the
amount of such proceeds (net of any expenses incurred in connection
with such
bid and the transfer of servicing), multiplied by a fraction equal
to (a) the
Servicer Fee Amount for the Master Servicer or such Sub-Servicer,
as the case
may be, as of such date of determination, over (b) the aggregate of
the
Servicer Fee Amounts for the Master Servicer and all of the
Sub-Servicers as
of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the
name
of the Depository or its nominee.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a
day
on which banking institutions in New York, New York, or the cities
in which
the Corporate Trust Office of the Trustee (which as of the Closing
Date is
Columbia, Maryland), the offices of the Master Servicer (which as
of the
Closing Date is Charlotte, North Carolina) or the offices of the
Special
Servicer (which as of the Closing Date is Miami Beach, Florida) are
located,
are authorized or obligated by law or executive order to remain
closed.
"CERCLA": The Comprehensive Environmental Response,
Compensation
and Liability Act of 1980, as amended.
"Certificate": Any one of the Wachovia Bank Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
2006-C23, as
executed by the Certificate Registrar and authenticated and
delivered
hereunder by the Authenticating Agent.
"Certificate Account": The segregated account or accounts
created and maintained by the Master Servicer pursuant to Section
3.04(a) on
behalf of the Trustee in trust for Certificateholders, which shall
be
entitled "Wachovia Bank, National Association, as Master Servicer
for Wells
Fargo Bank, N.A., as Trustee, on behalf of and in trust for the
registered
holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage
Pass-Through Certificates, Series 2006-C23." Subject to the related
Intercreditor Agreement and taking into account that (i) each
Subordinate
Companion Loan is subordinate to its related Co-Lender Loan to the
extent set
forth in the related Intercreditor Agreement, and (ii) each Pari
Passu
Companion Loan is pari passu with the related Pari Passu Mortgage
Loan, each
subaccount described in the next to last paragraph of Section
3.04(a) that is
part of the Certificate Account shall be for the benefit of the
related
Companion Holder, to the extent funds on deposit in such subaccount
are
attributed to the related Companion Loan.
"Certificate Deferred Interest": The amount by which interest
distributable to any Class of Sequential Pay Certificates is
reduced by the
amount of Mortgage Deferred Interest allocable to such Class of
Certificates
on any Distribution Date.
"Certificate Factor": With respect to any Class of Regular
Certificates as of any date of determination, a fraction, expressed
as a
decimal carried to eight places, the numerator of which is the then
current
Class Principal Balance, Class X-C Notional Amount or Class X-P
Notional
Amount, as applicable, of such Class of Regular Certificates and
the
denominator of which is the Original Class Principal Balance or
Original
Notional Amount of such Class of Regular Certificates.
"Certificate Notional Amount": With respect to any Class X-C
Certificate or Class X-P Certificate, as of any date of
determination, the
then notional amount of such Certificate equal to the product of
(a) the
Percentage Interest evidenced by such Certificate, multiplied by
(b) the then
Class X-C Notional Amount or Class X-P Notional Amount, as
applicable.
"Certificate Owner": With respect to a Book-Entry Certificate,
the Person who is the beneficial owner of such Certificate as
reflected on
the books of the Depository or on the books of a Depository
Participant or on
the books of an indirect participating brokerage firm for which a
Depository
Participant acts as agent.
"Certificate Principal Balance": With respect to any Sequential
Pay Certificate, as of any date of determination, the then
outstanding
principal amount of such Certificate equal to the product of (a)
the
Percentage Interest evidenced by such Certificate multiplied by (b)
the then
Class Principal Balance of the Class of Certificates to which
such
Certificate belongs.
"Certificate Register" and "Certificate Registrar": The
register
maintained and the registrar appointed pursuant to Section
5.02.
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) only a
Permitted
Transferee shall be the Holder of a Residual Certificate for any
purpose
hereof and, (ii) solely for the purposes of giving any consent,
approval or
waiver pursuant to this Agreement that relates to any of the
Depositor, any
Mortgage Loan Seller, the Master Servicer, the Special Servicer or
the
Trustee in its respective capacity as such (except with respect to
amendments
or waivers referred to in Sections 7.04 and 11.01 hereof and any
consent,
approval or waiver required or permitted to be made by the
Majority
Subordinate Certificateholder or the Controlling Class
Representative and any
election, removal or replacement of the Special Servicer or the
Controlling
Class Representative pursuant to Section 6.09), any Certificate
registered in
the name of the Depositor, any Mortgage Loan Seller, the Master
Servicer, the
Special Servicer or the Trustee, as the case may be, or any
Certificate
registered in the name of any of their respective Affiliates, shall
be deemed
not to be outstanding, and the Voting Rights to which it is
entitled shall
not be taken into account in determining whether the requisite
percentage of
Voting Rights necessary to effect any such consent, approval or
waiver that
relates to it has been obtained. The Certificate Registrar shall be
entitled
to request and rely upon a certificate of the Depositor, the Master
Servicer
or the Special Servicer in determining whether a Certificate is
registered in
the name of an Affiliate of such Person. All references herein to
"Holders"
or "Certificateholders" shall reflect the rights of Certificate
Owners as
they may indirectly exercise such rights through the Depository and
the
Depository Participants, except as otherwise specified herein;
provided,
however, that the parties hereto shall be required to recognize as
a "Holder"
or "Certificateholder" only the Person in whose name a Certificate
is
registered in the Certificate Register.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificates": The Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5 and Class A-1A Certificates.
"Class A-1 Certificate": Any one of the Certificates with a
"Class A-1" designation on the face thereof, substantially in the
form of
Exhibit A-1 attached hereto, and evidencing a "regular interest" in
REMIC II
for purposes of the REMIC Provisions.
"Class A-1A Certificate": Any one of the Certificates with a
"Class A-1A" designation on the face thereof, substantially in the
form of
Exhibit A-7 attached hereto, and evidencing a "regular interest" in
REMIC II
for purposes of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a
"Class A-2" designation on the face thereof, substantially in the
form of
Exhibit A-2 attached hereto, and evidencing a "regular interest" in
REMIC II
for purposes of the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a
"Class A-3" designation on the face thereof, substantially in the
form of
Exhibit A-3 attached hereto, and evidencing a regular interest in
REMIC II
for purposes of the REMIC provisions.
"Class A-4 Certificate": Any one of the Certificates with a
"Class A-4" designation on the face thereof, substantially in the
form of
Exhibit A-5 attached hereto, and evidencing a "regular interest" in
REMIC II
for purposes of the REMIC Provisions.
"Class A-5 Certificate": Any one of the Certificates with a
"Class A-5" designation on the face thereof, substantially in the
form of
Exhibit A-6 attached hereto, and evidencing a "regular interest" in
REMIC II
for purposes of the REMIC Provisions.
"Class A-J Certificate": Any one of the Certificates with a
"Class A-J" designation on the face thereof, substantially in the
form of
Exhibit A-11 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class A-M Certificate": Any one of the Certificates with a
"Class A-M" designation on the face thereof, substantially in the
form of
Exhibit A-10 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class A-PB Certificate": Any one of the Certificates with a
"Class A-PB designation on the face thereof, substantially in the
form of
Exhibit A-4 attached hereto, and evidencing a "regular interest" in
REMIC II
for purposes of the REMIC Provisions.
"Class A-PB Planned Principal Amount": The planned principal
amount set forth on Exhibit R hereto relating to principal payments
for the
Class A-PB Certificates.
"Class B Certificate": Any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the
form of
Exhibit A-12 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a
"Class C" designation on the face thereof, substantially in the
form of
Exhibit A-13 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the
form of
Exhibit A-14 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the
form of
Exhibit A-15 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the
form of
Exhibit A-16 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the
form of
Exhibit A-17 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a
"Class H" designation on the face thereof, substantially in the
form of
Exhibit A-18 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the
form of
Exhibit A-19 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a
"Class K" designation on the face thereof, substantially in the
form of
Exhibit A-20 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a
"Class L" designation on the face thereof, substantially in the
form of
Exhibit A-21 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class M Certificate": Any one of the Certificates with a
"Class M" designation on the face thereof, substantially in the
form of
Exhibit A-22 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a
"Class N" designation on the face thereof, substantially in the
form of
Exhibit A-23 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class O Certificate": Any one of the Certificates with a
"Class O" designation on the face thereof, substantially in the
form of
Exhibit A-24 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class P Certificate": Any one of the Certificates with a
"Class P" designation on the face thereof, substantially in the
form of
Exhibit A-25 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of
any Class of Sequential Pay Certificates outstanding from time to
time. As
of the Closing Date, the Class Principal Balance of each Class of
Sequential
Pay Certificates shall equal the Original Class Principal Balance
thereof.
On each Distribution Date, the Class Principal Balance of each such
Class of
Certificates shall be reduced by the amount of any distributions of
principal
made thereon on such Distribution Date pursuant to Section 4.01 or
9.01, as
applicable, and shall be further reduced by the amount of any
Realized Losses
and Additional Trust Fund Expenses allocated thereto on such
Distribution
Date pursuant to Section 4.04(a). The Class Principal Balance of any
Class
of Sequential Pay Certificates will be increased on any
Distribution Date by
the amount of any Certificate Deferred Interest allocated to such
Class on
such Distribution Date. Distributions in respect of a
reimbursement of
Realized Losses and Additional Trust Fund Expenses previously
allocated to a
Class of Sequential Pay Certificates shall not constitute
distributions of
principal and shall not result in reduction of the related Class
Principal
Balance.
"Class Q Certificate": Any one of the Certificates with a
"Class
Q" designation on the face thereof, substantially in the form of
Exhibit A-26
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes
of the REMIC provisions.
"Class R-I Certificate": Any one of the Certificates with a
"Class R-I" designation on the face thereof, substantially in the
form of
Exhibit A-28 attached hereto, and evidencing the sole class of
residual
interests in REMIC I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a
"Class R-II" designation on the face thereof, substantially in the
form of
Exhibit A-29 attached hereto, and evidencing the sole class of
"residual
interests" in REMIC II for purposes of the REMIC Provisions.
"Class S Certificate": Any one of the Certificates with a
"Class S" designation on the face thereof, substantially in the
form of
Exhibit A-27 attached hereto, and evidencing a "regular interest"
in REMIC II
for purposes of the REMIC Provisions.
"Class X Certificates": The Class X-C and Class X-P
Certificates.
"Class X-C Certificate": Any one of the Certificates with a
"Class X-C" designation on the face thereof, substantially in the
form of
Exhibit A-8 attached hereto, and evidencing a "regular interest" in
REMIC II
for purposes of the REMIC Provisions.
"Class X-C Notional Amount": With respect to the Class X-C
Certificates and any date of determination, the sum of the then
Component
Notional Amounts of all of the Components.
"Class X-C Strip Rate": With respect to any Class of Components
(other than Components that are also Class X-P Components) for
any
Distribution Date, a rate per annum equal to (i) the Weighted
Average Net
Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate
for the Corresponding Certificates. In the case of any Class of
Components
that are also Class X-P Components, (i) for any Distribution Date
occurring
on or before the related Class X-P Component Crossover Date, (x)
the Weighted
Average Net Mortgage Rate for such Distribution Date minus (y) the
sum of the
Pass-Through Rate for the Corresponding Certificates for such
Distribution
Date and the Class X-P Strip Rate for such Component for such
Distribution
Date, and (ii) for any Distribution Date occurring after the
related Class
X-P Component Crossover Date, a rate per annum equal to (x) the
Weighted
Average Net Mortgage Rate for such Distribution Date, minus (y)
the
Pass-Through Rate for the Corresponding Certificates (provided that
in no
event shall any Class X-C Strip Rate be less than zero).
"Class X-P Certificate": Any one of the Certificates with a
"Class X-P" designation on the face thereof, substantially in the
form of
Exhibit A-9 attached hereto, and evidencing the Class X-P
Components and a
"regular interest" in REMIC II for purposes of the REMIC
Provisions.
"Class X-P Component Crossover Date": With respect to each
Component set forth in the table below, the Distribution Date
occurring in
the month and year set forth in the table below:
Component
Cross-Over Date
--------------------------------------
----------------------
Component X-A-1-2 and Component
X-A-1A-2
September 2006
Component X-A-1-3 and Component
X-A-1A-3
March 2007
Component X-A-1-4, Component
X-A-2-1 and Component
X-A-1A-4
September 2007
Component X-A-2-2 and
Component
X-A-1A-5
March 2008
Component X-A-2-3, Component X-A-3,
Component X-A-PB-1,
Component
X-A-1A-6 and Component
X-K-1
September 2008
Component X-A-PB-2, Component
X-A-1A-7 and Component
X-K-2
March 2009
Component X-A-PB-3, Component
X-A-1A-8, Component
X-J-1 and
Component X-K-3
September 2009
Component X-A-PB-4, Component
X-A-4-1, Component
X-A-1A-9,
Component X-H-1 and
Component
X-J-2
March 2010
Component X-A-4-2, Component
X-A-1A-10 and
Component X-H-2
September 2010
Component X-A-4-3, Component
X-A-1A-11, Component
X-G-1 and
Component X-H-3
March 2011
Component X-A-4-4, Component
X-A-1A-12, Component
X-F-1 and
Component X-G-2
September 2011
Component X-A-4-5, Component
X-A-1A-13 and
Component X-F-2
March 2012
Component X-A-4-6, Component
X-A-1A-14, Component
X-E-1 and
Component X-F-3
September 2012
Component X-A-4-7, Component X-A-5,
Component X-A-1A-15,
Component
X-A-M, Component
X-A-J, Component
X-B, Component X-C,
Component X-D
and Component X-E-2
March 2013
"Class X-P Components": Each of Component X-A-1-2, Component
X-A-1-3, Component X-A-1-4, Component X-A-1A-2, Component X-A-1A-3,
Component
X-A-1A-4, Component X-A-1A-5, Component X-A-1A-6, Component
X-A-1A-7,
Component X-A-1A-8, Component X-A-1A-9, Component X-A-1A-10,
Component
X-A-1A-11, Component X-A-1A-12, Component X-A-1A-13, Component
X-A-1A-14,
Component X-A-1A-15, Component X-A-2-1, Component X-A-2-2,
Component X-A-2-3,
Component X-A-3, Component X-A-4-1, Component X-A-4-2, Component
X-A-4-3,
Component X-A-4-4, Component X-A-4-5, Component X-A-4-6, Component
X-A-4-7,
Component X-A-5, Component X-A-PB-1, Component X-A-PB-2, Component
X-A-PB-3,
Component X-A-PB-4, Component X-A-M, Component X-A-J, Component
X-B,
Component X-C, Component X-D, Component X-E-1, Component X-E-2,
Component
X-F-1, Component X-F-2, Component X-F-3, Component X-G-1, Component
X-G-2,
Component X-H-1, Component X-H-2, Component X-H-3, Component X-J-1,
Component
X-J-2, Component X-K-1, Component X-K-2 and Component X-K-3.
"Class X-P Notional Amount": As of any date of determination,
the sum of the then Component Notional Amounts of the Class X-P
Components,
excluding those Class X-P Components for which the Class X-P
Component
Crossover Date has previously passed.
"Class X-P Reference Rate": For any Distribution Date, the rate
per annum corresponding to such Distribution Date on Exhibit T.
"Class X-P Strip Rate": With respect to each of the Class X-P
Components for any Distribution Date, a rate per annum equal to (i)
for any
Distribution Date occurring on or before the related Class X-P
Component
Crossover Date, (x) the lesser of (i) the Weighted Average Net
Mortgage Rate
for such Distribution Date and (ii) the Class X-P Reference Rate
for such
Distribution Date minus 0.03% per annum minus (y) the Pass-Through
Rate for
the Corresponding Certificates (provided that in no event shall any
Class X-P
Strip Rate be less than zero), and (ii) for any Distribution Date
occurring
after the related Class X-P Component Crossover Date, 0% per
annum.
"Class Z Certificate": Any one of the Certificates with a
"Class Z" designation on the face thereof, substantially in the
form of
Exhibit A-30 attached hereto, and evidencing an undivided
beneficial interest
in the Additional Interest that is described in Section
4.01(b).
"Closing Date": March 7, 2006.
"CMSA": The Commercial Mortgage Securities Association
(formerly
the Commercial Real Estate Secondary Market and Securitization
Association)
or any successor organization.
"CMSA Advance Recovery Report": The report substantially in the
form of, and containing the information called for in, the
downloadable form
of the "Advance Recovery Report" available as of the Closing Date
on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved
by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Bond File": The monthly report substantially in the form
of, and containing the information called for in, the downloadable
form of
the "CMSA Bond Level File" available as of the Closing Date on the
CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved
by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Collateral Summary File": The report substantially in the
form of, and containing the information called for in, the
downloadable form
of the "Collateral Summary File" available as of the Closing Date
on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved
by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Comparative Financial Status Report": The report
substantially in the form of, and containing the information called
for in,
the downloadable form of the "Comparative Financial Status Report"
available
as of the Closing Date on the CMSA Website, or such other form for
the
presentation of such information as may from time to time be
approved by the
CMSA for commercial mortgage securities transactions generally.
In
connection with preparing the CMSA Comparative Financial Status
Report, the
Master Servicer shall process (a) interim financial statements
beginning with
interim financial statements for the fiscal quarter ending June 30,
2006 and
(b) annual financial statements beginning with annual financial
statements
for the 2006 fiscal year.
"CMSA Delinquent Loan Status Report": The report substantially
in the form of, and containing the information called for in,
the
downloadable form of the "Delinquent Loan Status Report" available
as of the
Closing Date on the CMSA Website, or such other form for the
presentation of
such information and containing such additional information as may
from time
to time be approved by the CMSA for commercial mortgage
securities
transactions generally.
"CMSA Financial File": The report substantially in the form of,
and containing the information called for in, the downloadable form
of the
"Financial File" available as of the Closing Date on the CMSA
Website, or
such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Historical Liquidation Report": The report substantially
in the form of, and containing the information called for in,
the
downloadable form of the "Historical Liquidation Report" available
as of the
Closing Date on the CMSA Website, or such other form for the
presentation of
such information and containing such additional information as may
from time
to time be approved by the CMSA for commercial mortgage
securities
transactions generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing
the
information called for in, the downloadable form of the "Historical
Loan
Modification and Corrected Mortgage Loan Report" available as of
the Closing
Date on the CMSA Website, or such other form for the presentation
of such
information and containing such additional information as may from
time to
time be approved by the CMSA for commercial mortgage securities
transactions
generally.
"CMSA Loan Level Reserve/LOC Report": The report substantially
in the form of, and containing the information called for in,
the
downloadable form of the "CMSA Loan Level Reserve/LOC Report"
available as of
the Closing Date on the CMSA Website, or such other form for the
presentation
of such information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Loan Periodic Update File": The monthly report
substantially in the form of, and containing the information called
for in,
the downloadable form of the "Loan Periodic Update File" available
as of the
Closing Date on the CMSA Website, or such other form for the
presentation of
such information and containing such additional information as may
from time
to time be approved by the CMSA for commercial mortgage
securities
transactions generally.
"CMSA Loan Setup File": The report substantially in the form
of,
and containing the information called for in, the downloadable form
of the
"Loan Setup File" available as of the Closing Date on the CMSA
Website, or
such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA NOI Adjustment Worksheet": A report substantially in the
form of, and containing the information called for in, the
downloadable form
of the "NOI Adjustment Worksheet" available as of the Closing Date
on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved
by the CMSA for commercial mortgage securities transactions and in
any event,
shall present the computations made in accordance with the
methodology
described in such form to "normalize" the full year net operating
income and
debt service coverage numbers used in the other reports required by
this
Agreement.
"CMSA Operating Statement Analysis": A report substantially in
the form of, and containing the information called for in, the
downloadable
form of the "Operating Statement Analysis Report" available as of
the Closing
Date on the CMSA Website or in such other form for the presentation
of such
information and containing such additional information as may from
time to
time be approved by the CMSA for commercial mortgage-backed
securities
transactions generally. In connection with preparing the
CMSA Operating
Statement Analysis, the Master Servicer shall process (a) interim
financial
statements beginning with interim financial statements for the
fiscal quarter
ending June 30, 2006 and (b) annual financial statements beginning
with
annual financial statements for the 2006 fiscal year.
"CMSA Property File": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the
"Property File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Reconciliation of Funds Report": The monthly report in
the
"Reconciliation of Funds" format substantially in the form of and
containing
the information called for therein for the Mortgage Loans, or such
other form
for the presentation of such information as may be approved from
time to time
by the CMSA for commercial mortgage securities transactions
generally.
"CMSA REO Status Report": A report substantially in the form
of,
and containing the information called for in, the downloadable form
of the
"REO Status Report" available as of the Closing Date on the CMSA
Website, or
in such other form for the presentation of such information and
containing
such additional information as may from time to time be approved by
the CMSA
for commercial mortgage securities transactions generally.
"CMSA Servicer Watchlist": For any Determination Date, a report
substantially in the form of, and containing the information called
for in,
the downloadable form of the "Servicer Watchlist/Portfolio Review
Guidelines"
available as of the Closing Date on the CMSA Website, or in such
other final
form for the presentation of such information and containing such
additional
information as may from time to time be promulgated as approved by
the CMSA
for commercial mortgage securities transactions generally.
"CMSA Website": The website maintained by the CMSA with an
address, as of the Closing Date, of "www.cmbs.org".
"Code": The Internal Revenue Code of 1986, as amended, and
applicable temporary or final regulations of the U.S. Department of
the
Treasury promulgated thereunder.
"Co-Lender Loans": As defined in the Preliminary Statement.
"Collection Period": With respect to any Distribution Date, the
period that begins on the twelfth day in the month immediately
preceding the
month in which such Distribution Date occurs (or, in the case of
the initial
Distribution Date, commencing on the day after the related Cut-Off
Date) and
ending on and including the eleventh day in the month in which
such
Distribution Date occurs. Notwithstanding the foregoing, in
the event that
the last day of a Collection Period is not a Business Day, any
Periodic
Payments or Principal Prepayments with respect to the Mortgage
Loans relating
to a Due Date occurring in such Collection Period (but for the
application of
the next Business Day convention) received on the Business Day
immediately
following such day will be deemed to have been received during
such
Collection Period and not during any other Collection Period.
In addition,
notwithstanding the foregoing, with respect to any Distribution
Date, in the
event that the Due Date, including any grace period, with respect
to any
Mortgage Loan relating to such Distribution Date occurs after the
last day of
the related Collection Period, any payments received with respect
to the
related Mortgage Loan on or before such Due Date as extended by
any
applicable grace period (including without limitation, any
prepayments) will
be deemed to have been received during such Collection Period and
not during
any other Collection Period.
"Commission": The Securities and Exchange Commission or any
successor agency.
"Companion Distribution Account": With respect to the Companion
Loans, other than the Hyatt Center Pari Passu Companion Loan, the
separate
account(s) or subaccount(s) created and maintained by the Companion
Paying
Agent pursuant to Section 3.04(b) and held on behalf of the
Companion
Holders, which shall be entitled "Wachovia Bank, National
Association, as
Companion Paying Agent for the Companion Holders of the Companion
Loans
relating to the Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage
Pass-Through Certificates, Series 2006-C23." The Companion Distribution
Accounts shall not be assets of the Trust Fund, but instead each
Companion
Distribution Account shall be held by the Companion Paying Agent on
behalf of
the applicable Companion Holder. Any such account shall be an
Eligible
Account or a subaccount of an Eligible Account. Notwithstanding the
foregoing, if the Master Servicer and the Companion Paying Agent
are the same
entity, the Companion Distribution Account may be the related
subaccount or
subaccounts of the Certificate Account referenced in the second to
the last
paragraph of Section 3.04(a).
"Companion Holder": With respect to any Companion Loan, the
owner of the Mortgage Note representing such Companion Loan.
As of the
Closing Date, the Companion Holders of the Companion Loans are (i)
Wachovia
Bank, National Association, with respect to the Prime Outlets Pool
Pari Passu
Companion Loan, (ii) the trust fund created under the 2005-C22
Pooling and
Servicing Agreement, with respect to the Hyatt Center Pari Passu
Companion
Loan, (iii) 620 Sixth Funding LLC, with respect to the 620 Avenue
of the
Americas Companion Loan, (iv) MMA B-Note Value Fund, LP, with
respect to the
Hohokam Towers Companion Loan, and (v) Caplease, LP, with respect
to the
DEA/ATF Building Companion Loan and the SSA-Austin, TX Companion
Loan.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Paying Agent": The paying agent appointed pursuant
to
Section 3.26.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 3.27.
"Component": Each of Component X-A-1-1, Component X-A-1-2,
Component X-A-1-3, Component X-A-1-4, Component X-A-1A-1, Component
X-A-1A-2,
Component X-A-1A-3, Component X-A-1A-4, Component X-A-1A-5,
Component
X-A-1A-6, Component X-A-1A-7, Component X-A-1A-8, Component
X-A-1A-9,
Component X-A-1A-10, Component X-A-1A-11, Component X-A-1A-12,
Component
X-A-1A-13, Component X-A-1A-14, Component X-A-1A-15, Component
X-A-2-1,
Component X-A-2-2, Component X-A-2-3, Component X-A-3, Component
X-A-4-1,
Component X-A-4-2, Component X-A-4-3, Component X-A-4-4, Component
X-A-4-5,
Component X-A-4-6, Component X-A-4-7, Component X-A-5, Component
X-A-PB-1,
Component X-A-PB-2, Component X-A-PB-3, Component X-A-PB-4,
Component X-A-M,
Component X-A-J, Component X-B, Component X-C, Component X-D,
Component
X-E-1, Component X-E-2, Component X-F-1, Component X-F-2, Component
X-F-3,
Component X-G-1, Component X-G-2, Component X-H-1, Component X-H-2,
Component
X-H-3, Component X-J-1, Component X-J-2, Component X-K-1, Component
X-K-2,
Component X-K-3, Component X-L, Component X-M, Component X-N,
Component X-O,
Component X-P, Component X-Q and Component X-S.
"Component X-A-1-1": One of 62 components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current
REMIC I Principal Balance of REMIC I Regular Interest LA-1-1 as of
any date
of determination.
"Component X-A-1-2": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1-2 as of any date of
determination.
"Component X-A-1-3": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1-3 as of any date of
determination.
"Component X-A-1-4": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1-4 as of any date of
determination.
"Component X-A-1A-1": One of 62 components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current
REMIC I Principal Balance of REMIC I Regular Interest LA-1A-1 as of
any date
of determination.
"Component X-A-1A-2": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-2 as of any date of
determination.
"Component X-A-1A-3": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-3 as of any date of
determination.
"Component X-A-1A-4": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-4 as of any date of
determination.
"Component X-A-1A-5": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-5 as of any date of
determination.
"Component X-A-1A-6": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-6 as of any date of
determination.
"Component X-A-1A-7": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-7 as of any date of
determination.
"Component X-A-1A-8": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-8 as of any date of
determination.
"Component X-A-1A-9": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-9 as of any date of
determination.
"Component X-A-1A-10": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-10 as of any date of
determination.
"Component X-A-1A-11": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-11 as of any date of
determination.
"Component X-A-1A-12": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-12 as of any date of
determination.
"Component X-A-1A-13": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-13 as of any date of
determination.
"Component X-A-1A-14": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-14 as of any date of
determination.
"Component X-A-1A-15": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-1A-15 as of any date of
determination.
"Component X-A-2-1": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-2-1 as of any date of
determination.
"Component X-A-2-2": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-2-2 as of any date of
determination.
"Component X-A-2-3": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-2-3 as of any date of
determination.
"Component X-A-3": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-3 as of any date of
determination.
"Component X-A-4-1": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-4-1 as of any date of
determination.
"Component X-A-4-2": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-4-2 as of any date of
determination.
"Component X-A-4-3": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-4-3 as of any date of
determination.
"Component X-A-4-4": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-4-4 as of any date of
determination.
"Component X-A-4-5": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-4-5 as of any date of
determination.
"Component X-A-4-6": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-4-6 as of any date of
determination.
"Component X-A-4-7": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-4-7 as of any date of
determination.
"Component X-A-5": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-5 as of any date of
determination.
"Component X-A-J": One of the 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-J as of any date of
determination.
"Component X-A-M": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-M as of any date of
determination.
"Component X-A-PB-1": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-PB-1 as of any date of
determination.
"Component X-A-PB-2":
One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-PB-2 as of any date of
determination.
"Component X-A-PB-3": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-PB-3 as of any date of
determination.
"Component X-A-PB-4": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LA-PB-4 as of any date of
determination.
"Component X-B": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LB as of any date of determination.
"Component X-C": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LC as of any date of determination.
"Component X-D": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LD as of any date of determination.
"Component X-E-1": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LE-1 as of any date of
determination.
"Component X-E-2": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LE-2 as of any date of
determination.
"Component X-F-1": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LF-1 as of any date of
determination.
"Component X-F-2": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LF-2 as of any date of
determination.
"Component X-F-3": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LF-3 as of any date of
determination.
"Component X-G-1": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LG-1 as of any date of
determination.
"Component X-G-2": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LG-2 as of any date of
determination.
"Component X-H-1": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LH-1 as of any date of
determination.
"Component X-H-2": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LH-2 as of any date of
determination.
"Component X-H-3": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LH-3 as of any date of
determination.
"Component X-J-1": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LJ-1 as of any date of
determination.
"Component X-J-2": One of 62 components of the Class X-C
Certificates and one of 53 components of the Class X-P Certificates
having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LJ-2 as of any date of
determination.
"Component X-K-1": One of 62 components of the Class X-C
Certificates and one
of 53 components of the Class X-P Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LK-1 as of any date of
determination.
"Component X-K-2": One of 62 components of the Class X-C
Certificates and one
of 53 components of the Class X-P Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LK-2 as of any date of
determination.
"Component X-K-3": One of 62 components of the Class X-C
Certificates and one
of 53 components of the Class X-P Certificates having a
Component Notional Amount equal to the then current REMIC I
Principal Balance
of REMIC I Regular Interest LK-3 as of any date of
determination.
"Component X-L": One of 62 components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current
REMIC I Principal Balance of REMIC I Regular Interest LL as of any
date of
determination.
"Component X-M": One of 62 components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current
REMIC I Principal Balance of REMIC I Regular Interest LM as of any
date of
determination.
"Component X-N": One of 62 components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current
REMIC I Principal Balance of REMIC I Regular Interest LN as of any
date of
determination.
"Component X-O": One of 62 components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current
REMIC I Principal Balance of REMIC I Regular Interest LO as of any
date of
determination.
"Component X-P": One of 62 components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current
REMIC I Principal Balance of REMIC I Regular Interest LP as of any
date of
determination.
"Component X-Q": One of 62 components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current
REMIC I Principal Balance of REMIC I Regular Interest LQ as of any
date of
determination.
"Component X-S": One of 62 components of the Class X-C
Certificates having a Component Notional Amount equal to the then
current
REMIC I Principal Balance of REMIC I Regular Interest LS as of any
date of
determination.
"Controlling Class": With respect to each Mortgage Loan as of
any date of determination, the Class of Sequential Pay
Certificates,
(i) which bears the latest payment priority and (ii) the Class
Principal
Balance of which is greater than 25% of the Original Class
Principal Balance
thereof; provided, however, that if no Class of Sequential Pay
Certificates
satisfies clause (ii) above, the Controlling Class shall be the
outstanding
Class of Sequential Pay Certificates bearing the latest payment
priority.
With respect to determining the Controlling Class, the Class A-1,
Class A-2,
Class A-3, Class A-PB, Class A-4, Class A-5 and Class A-1A
Certificates shall
be deemed a single Class of Certificates.
"Controlling Class Representative": As defined in
Section 3.25(a).
"Controlling Person": With respect to any Person, any other
Person who "controls" such Person within the meaning of the
Securities Act.
"Corporate Trust Office": The corporate trust office of the
Trustee at which at any particular time its corporate trust
business with
respect to this Agreement shall be administered, which office at
the date of
the execution of this Agreement is located at (i) with respect to
maintenance
of the Certificate Registrar and the transfer and exchange of
Certificates,
the office of the Trustee located at Wells Fargo Center, Sixth and
Marquette,
Minneapolis, Minnesota 55479-0113, Attention: Corporate Trust
Services (CMBS)
Wachovia Bank Commercial Mortgage Trust, Series 2006-C23 and (ii)
for all
other purposes, the office of the Trustee located at 9062 Old
Annapolis Road,
Columbia, Maryland 21045-1951, Attention: Corporate Trust Services
(CMBS)
Wachovia Bank Commercial Mortgage Trust, Series 2006-C23.
"Corrected Mortgage Loan": Any Mortgage Loan and, if
applicable,
any Companion Loan that had been a Specially Serviced Mortgage Loan
but has
ceased to be a Specially Serviced Mortgage Loan in accordance with
the
definition of "Specially Serviced Mortgage Loan."
"Corresponding Certificate": As defined in the Preliminary
Statement with respect to any Corresponding Component or any
Corresponding
REMIC I Regular Interest.
"Corresponding Component": As defined in the Preliminary
Statement with respect to any Corresponding Certificate or any
Corresponding
REMIC I Regular Interest.
"Corresponding REMIC I Regular Interest": As defined in the
Preliminary Statement with respect to any Class of Corresponding
Certificates
or any Corresponding Component of the Class X-C Certificates or
Class X-P
Certificates.
"Crossed Group": With respect to any Mortgage Loan, such
Mortgage Loan and all other Mortgage Loans that are
cross-collateralized and
cross-defaulted with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized
and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The Debt Service
Coverage Ratio for all remaining related Crossed Loans for the four
calendar
quarters immediately preceding the repurchase or substitution is
not less
than the Debt Service Coverage Ratio for all such related Crossed
Loans,
including the affected Crossed Loan, for the four calendar
quarters
immediately preceding the repurchase or substitution, (ii) the
Loan-to-Value
Ratio for any remaining related Crossed Loans determined at the
time of
repurchase or substitution based upon an Appraisal obtained by the
Special
Servicer at the expense of the related Mortgage Loan Seller is not
greater
than the Loan-to-Value Ratio for all such related Crossed Loans,
including
the affected Crossed Loan, determined at the time of repurchase
or
substitution based upon an Appraisal obtained by the Special
Servicer at the
expense of the related Mortgage Loan Seller and (iii) the Mortgage
Loan
Seller, at its expense, shall have furnished the Trustee with an
Opinion of
Counsel that the repurchase of or substitution for a Crossed Loan,
including,
without limitation, any modification relating to such repurchase
or
substitution, shall not cause an Adverse REMIC Event.
"Custodian": A Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for the
Mortgage
Files, which Person shall not be the Depositor, a Mortgage Loan
Seller or an
Affiliate of the Depositor or a Mortgage Loan Seller. If no such custodian
has been appointed or if such custodian has been so appointed, but
the
Trustee shall have terminated such appointment, then the Trustee
shall be the
Custodian.
"Cut-Off Date": With respect to any Mortgage Loan or Companion
Loan, the Due Date for such Mortgage Loan or Companion Loan in
March 2006.
"Cut-Off Date Balance": With respect to any Mortgage Loan or
Companion Loan, the outstanding principal balance of such Mortgage
Loan or
Companion Loan as of the Cut-Off Date, after application of all
unscheduled
payments of principal received on or before such date and the
principal
component of all Periodic Payments due on or before such date,
whether or not
received.
"DEA/ATF Building Companion Loan": That certain mortgage loan
evidenced by a note, which is not an asset of the Trust Fund,
secured by the
Mortgaged Property securing the DEA/ATF Building Loan.
"DEA/ATF Building Intercreditor Agreement": The Intercreditor
and Servicing Agreement, dated as of August 16, 2005, by and
between Wachovia
Bank, National Association, as A-Note Holder and Caplease, LP, as
B-Note
Holder relating to the DEA/ATF Building Loan Pair.
"DEA/ATF Building Loan": That certain Mortgage Loan which is
included in the Trust Fund (identified as loan number 87 on the
Mortgage Loan
Schedule).
"DEA/ATF Building Loan Pair": The DEA/ATF Building Loan,
together with the DEA/ATF Building Companion Loan.
"Debt Service Coverage Ratio": With respect to any Mortgage
Loan, as of any date of determination, the ratio of (x) the
annualized Net
Operating Income (before payment of any debt service on such
Mortgage Loan)
generated by the related Mortgaged Property during the most
recently ended
period of not less than six months and not more than twelve months
for which
financial statements, if available (whether or not audited) have
been
received by or on behalf of the related Mortgage Loan Seller (prior
to the
Closing Date) or the Master Servicer or the Special Servicer
(following the
Closing Date), to (y) twelve times the amount of the Periodic
Payment in
effect for such Mortgage Loan as of such date of determination.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that is
delinquent sixty days or more in respect to a Periodic Payment (not
including
the Balloon Payment) or (ii) is delinquent in respect of its
Balloon Payment
unless the Master Servicer has, on or prior to the Due Date of such
Balloon
Payment, received written evidence from an institutional lender of
such
lender's binding commitment to refinance such Mortgage Loan within
60 days
after the Due Date of such Balloon Payment (provided that, if
such
refinancing does not occur during such time specified in the
commitment, the
related Mortgage Loan will immediately become a Defaulted Mortgage
Loan), in
either case such delinquency to be determined without giving effect
to any
grace period permitted by the related Mortgage or Mortgage Note and
without
regard to any acceleration of payments under the related Mortgage
and
Mortgage Note, or (iii) as to which the Master Servicer or Special
Servicer
has, by written notice to the related Mortgagor, accelerated the
maturity of
the indebtedness evidenced by the related Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defeasance Collateral": With respect to any Defeasance Loan,
the United States government securities required or permitted to be
pledged
in lieu of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a Defeasance
Loan on the Mortgage Loan Schedule which permits or requires the
related
Mortgagor (or permits the holder of such Mortgage Loan to require
the related
Mortgagor) to pledge Defeasance Collateral to such holder in lieu
of
prepayment.
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged
Property in
an amount less than the then outstanding principal balance of the
Mortgage
Loan, which valuation results from a proceeding initiated under
the
Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.03(a).
"Depositor": Wachovia Commercial Mortgage Securities, Inc. or
its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c).
The nominee
of the initial Depository for purposes of registering those
Certificates that
are to be Book-Entry Certificates is Cede & Co. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(3) of
the
Uniform Commercial Code of the State of New York and a "clearing
agency"
registered pursuant to the provisions of Section 17A of the
Securities
Exchange Act of 1934, as amended.
"Depository Participant": A broker, dealer, bank or other
financial institution or other Person for whom from time to time
the
Depository effects book-entry transfers and pledges of securities
deposited
with the Depository.
"Determination Date": The eleventh day of each month, or if
such
eleventh day is not a Business Day, the Business Day immediately
succeeding,
commencing in April 2006.
"Determination Party": Midland Loan Services, Inc., or a second
party that would qualify as a successor Special Servicer mutually
agreeable
to the Special Servicer, the Controlling Class Representative and
the
applicable Mortgage Loan Seller, or any successor in interest
thereto;
provided that (a) each such party is on the list of approved
special
servicers by Moody's and on S&P's Select Servicer List as a
U.S. Commercial
Mortgage Special Servicer or (b) each Rating Agency has confirmed
in writing
that contracting with such Determination Party would not result in
a
downgrade, qualification or withdrawal of the then current rating
assigned to
any of the Certificates that are then currently rated by such
Rating Agency.
"Directly Operate": With respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the
management of
such REO Property, the holding of such REO Property primarily for
sale or
lease or the performance of any construction work thereon, in each
case other
than through an Independent Contractor; provided, however, that the
Trustee
(or the Special Servicer or any Sub-Servicer on behalf of the
Trustee) shall
not be considered to Directly Operate an REO Property solely
because the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of
the
Trustee) establishes rental terms, chooses tenants, enters into or
renews
leases, deals with taxes and insurance, or makes decisions as to
repairs or
capital expenditures with respect to such REO Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or
REO Loan for purposes of allocating any Yield Maintenance Charge
or
Prepayment Premium received thereon or with respect thereto among
the
respective Classes of the Sequential Pay Certificates (other than
any
Excluded Class thereof), an amount, calculated by the Master
Servicer and
reported to the Trustee pursuant to Section 4.02(b), will be equal
to the
discount rate stated in the related Mortgage Loan documents used
in
calculating the Yield Maintenance Charge or Prepayment Premium with
respect
to such principal prepayment. To the extent that a discount rate
is not
stated therein, the "Discount Rate" will be equal to the yield
(when
compounded monthly) on the U.S. Treasury issue with a maturity date
closest
to the maturity date for such prepaid Mortgage Loan or REO Loan.
In the
event there are two or more such U.S. Treasury issues (a) with the
same
coupon, the issue with the lowest yield shall apply, and (b) with
maturity
dates equally close to the maturity date for the prepaid Mortgage
Loan or REO
Loan, the issue with the earliest maturity date shall apply.
"Disqualified Non-United States Persons": With respect to a
Class R-I or Class R-II Certificate, any Non-United States Person
or agent
thereof other than (i) a Non-United States Person that holds the
Class R-I or
Class R-II Certificate in connection with the conduct of a trade or
business
within the United States and has furnished the transferor and the
Certificate
Registrar with an effective IRS Form W-8ECI (or successor form) or
(ii) a
Non-United States Person that has delivered to both the transferor
and the
Certificate Registrar an opinion of a nationally recognized tax
counsel to
the effect that the transfer of the Class R-I or Class R-II
Certificate to it
is in accordance with the requirements of the Code and the
regulations
promulgated thereunder and that such transfer of the Class R-I or
Class R-II
Certificate will not be disregarded for federal income tax
purposes.
"Disqualified Organization": Any of the following: (i) the
United States or a possession thereof, any State or any political
subdivision
thereof, or any agency or instrumentality of any of the foregoing
(other than
an instrumentality which is a corporation if all of its activities
are
subject to tax and, except for FHLMC, a majority of its board of
directors is
not selected by any such governmental unit), (ii) a foreign
government,
international organization, or any agency or instrumentality of
either of the
foregoing, (iii) any organization (except certain farmers'
cooperatives
described in Section 521 of the Code) which is exempt from the tax
imposed by
Chapter 1 of the Code (unless such organization is subject to the
tax imposed
by Section 511 of the Code on unrelated business taxable income),
(iv) rural
electric and telephone cooperatives described in Section 1381 of
the Code or
(v) any other Person so designated by the Trustee or the
Certificate
Registrar based upon an Opinion of Counsel (which shall not be an
expense of
the Trustee) that the holding of an Ownership Interest in a
Residual
Certificate by such Person may cause the Trust Fund or any Person
having an
Ownership Interest in any Class of Certificates, other than such
Person, to
incur a liability for any federal tax imposed under the Code that
would not
otherwise be imposed but for the Transfer of an Ownership Interest
in a
Residual Certificate to such Person. The terms "United States," "State"
and
"international organization" shall have the meanings set forth
in
Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to: (a) any
Class of Sequential Pay Certificates for any Distribution Date, the
Accrued
Certificate Interest in respect of such Class of Certificates for
such
Distribution Date, reduced other than with respect to the Class
X
Certificates (to not less than zero) by (i) the product of (A) any
Net
Aggregate Prepayment Interest Shortfall for such Distribution Date
and (B) a
fraction, expressed as a decimal, the numerator of which is the
Accrued
Certificate Interest in respect of such Class of Certificates for
such
Distribution Date, and the denominator of which is the aggregate
Accrued
Certificate Interest in respect of all the Classes of Sequential
Pay
Certificates for such Distribution Date, and (ii) with respect to
each such
Class, such Class' share of any Certificate Deferred Interest
allocated to
such Class of Certificates in accordance with Section 4.04(c); and
(b) any
Class of Class X Certificates for any Distribution Date, the
Accrued
Certificate Interest in respect of such Class of Certificates for
such
Distribution Date.
"Distribution Account": The segregated account, accounts or
subaccounts created and maintained by the Paying Agent on behalf of
the
Trustee pursuant to Section 3.04(b) which shall be entitled "Wells
Fargo,
Bank, N.A., as Trustee, in trust for the registered holders of
Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates,
Series 2006-C23."
"Distribution Date": With respect to any Determination Date,
the
fourth Business Day following such Determination Date.
"Distribution Date Statement": As defined in Section 4.02(a).
"Do Not Hire List": The list, as may be updated at any time,
provided by the Depositor to the Master Servicer, the Special
Servicer and
the Trustee, which lists certain parties identified by the
Depositor as
having failed to comply with their respective obligations under
Section 8.17
of this Agreement or as having failed to comply with any similar
Regulation
AB reporting requirements under any pooling and servicing agreement
relating
to any other series of certificates offered by the Depositor.
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior
to
its Stated Maturity Date or any Companion Loan on or prior to its
maturity
date, the day of the month set forth in the related Mortgage Note
on which
each Periodic Payment on such Mortgage Loan or Companion Loan is
scheduled to
be first due; (ii) any Mortgage Loan after its Stated Maturity Date
or any
Companion Loan after its maturity date, the day of the month set
forth in the
related Mortgage Note on which each Periodic Payment on such
Mortgage Loan or
Companion Loan had been scheduled to be first due and (iii) any REO
Loan, the
day of the month set forth in the related Mortgage Note on which
each
Periodic Payment on the related Mortgage Loan had been scheduled to
be first
due.
"EDGAR": The Commission's Electronic Data Gathering, Analysis
and Retrieval system.
"Eligible Account": Any of (i) an account maintained with a
federal or state chartered depository institution or trust company,
and (a)
with respect to deposits held for 30 days or more in such account,
the
long-term deposit or
unsecured debt obligations of which are rated at least
(A) "Aa3" by Moody's (if then rated by Moody's), and (B) "AA-" by
S&P (or
"A-"; provided the short-term unsecured debt obligations are rated
at least
"A-1" by S&P) (or, with respect to any such Rating Agency, such
lower rating
as will not result in qualification, downgrading or withdrawal of
the ratings
then assigned to the Certificates, as evidenced in writing by the
applicable
Rating Agency), at any time such funds are on deposit therein or
(b) with
respect to deposits held for less than 30 days in such account,
the
short-term deposits of which are rated at least "P-1" by Moody's
(if then
rated by Moody's), and "A-1" by S&P (or, with respect to any
such Rating
Agency, such lower rating as will not result in qualification,
downgrading or
withdrawal of the ratings then assigned to the Certificates) as
evidenced in
writing by the applicable Rating Agency at any time such funds are
on deposit
therein; or (ii) a segregated trust account or accounts maintained
with a
federal or state chartered depository institution or trust company
acting in
its fiduciary capacity, which, in the case of a state chartered
depository
institution or trust company, is subject to regulations regarding
fiduciary
funds on deposit therein substantially similar to 12 CFR ss.
9.10(b), the long
term deposits or unsecured debt of which, or if it is the
wholly-owned
subsidiary of an entity the long-term deposits or unsecured
obligations of
which, are rated at least "Baa3" by Moody's and which has a
combined capital
and surplus of at least $50,000,000; or (iii) any other account,
the use of
which would not, in and of itself, cause a qualification,
downgrading or
withdrawal of the then-current rating assigned to any Class of
Certificates,
as confirmed in writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as described
in, and meeting the criteria of, (i) Chapter 5 of the FNMA
Multifamily Guide
or any successor provisions covering the same subject matter in the
case of a
Specially Serviced Mortgage Loan as to which the related Mortgaged
Property
is multifamily property or (ii) the American Society for Testing
and
Materials in the case of Specially Serviced Mortgage Loan as to
which the
related Mortgaged Property is not multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974,
as
amended, and any regulations and administrative pronouncements
thereunder.
"ERISA Restricted Certificate": Any Class L, Class M, Class N,
Class O, Class P, Class Q or Class S Certificate; provided that any
such
Certificate (a) will cease to be considered an ERISA Restricted
Certificate
and (b) will cease to be subject to the transfer restrictions
related to
ERISA Restricted Certificates contained in Section 5.02(c) if, as
of the date
of a proposed transfer of such Certificate, either (i) it is rated
in one of
the four highest generic ratings categories by a Rating Agency
or
(ii) relevant provisions of ERISA and the Code would permit
transfer of such
Certificate to a Plan without resulting in a non-exempt
prohibited
transaction.
"Escrow Payment": Any payment received by the Master Servicer
or
the Special Servicer for the account of any Mortgagor for
application toward
the payment of real estate taxes, assessments, insurance premiums,
ground
rents (if applicable) and other similar items in respect of the
related
Mortgaged Property.
"Event of Default": One or more of the events described in
Section 7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Excluded Class": Any Class of Sequential Pay Certificates
other
than the Class A-1 Certificates, Class A-2 Certificates, Class
A-3
Certificates, Class A-PB Certificates, Class A-4 Certificates,
Class A-5
Certificates, Class A-1A Certificates, Class A-M Certificates,
Class A-J
Certificates, Class B Certificates, Class C Certificates, Class
D
Certificates, Class E Certificates, Class F Certificates, Class
G
Certificates, Class H Certificates, Class J Certificates and Class
K
Certificates.
"Exemptions": Department of Labor Prohibited Transaction
Exemption ("PTE") 96-22, PTE 93-32, PTE 93-31, Final Authorization
Number
97-03E, PTE 89-88 and PTE 2002-19, each as amended from time to
time, or any
successor thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any
successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Defaulted Mortgage Loan (and, if
applicable, any
defaulted Companion Loan) or REO Property that there has been a
recovery of
all Insurance Proceeds, Liquidation Proceeds and other payments or
recoveries
that the Special Servicer has determined, in accordance with the
Servicing
Standard, will be ultimately recoverable (or in the case of the
2005-C22
Serviced Mortgage Loan, a "Final Recovery Determination" as defined
in the
2005-C22 Pooling and Servicing Agreement).
"FNMA": Federal National Mortgage Association or any successor.
"Form 8-K Disclosure Information": As defined in Section
8.17(j).
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan, the
excess of (i) Liquidation Proceeds of the Mortgage Loan or related
REO
Property net of any related Liquidation Expenses, over (ii) the
Purchase
Price for such Mortgage Loan on the date on which such Liquidation
Proceeds
were received.
"Gain-on-Sale Reserve Account": A segregated custodial account
or accounts or subaccount of the Distribution Account created and
maintained
by the Paying Agent pursuant to Section 3.04(e) on behalf of the
Trustee in
trust for the Certificateholders, which shall be entitled "Wells
Fargo Bank,
N.A., as Trustee, in trust for the registered holders of Wachovia
Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates,
Series 2006-C23." Any
such account shall be an Eligible Account or a
subaccount of an Eligible Account.
"Grantor Trust Provisions": Subpart E of Part I of subchapter J
of the Code and Treasury Regulations Section 301.7701-4(c).
"Ground Lease": With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged
Property or space
lease within such Mortgaged Property, the lease agreement creating
such
leasehold interest.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage Loan Schedule as belonging to Loan Group 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without
limitation,
those so identified pursuant to CERCLA or any other federal, state
or local
environmental related laws and regulations now existing or
hereafter enacted,
and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"),
radon gas,
petroleum and petroleum products and urea formaldehyde.
"Highland and Lodge Pool Loan": Those certain Mortgage Loans
identified on the Mortgage Loan Schedule as the Highland and Lodge
Pool (loan
number 14).
"Hohokam Towers Companion Loan": That certain mortgage loan
evidenced by a note, which is not an asset of the Trust Fund,
secured by the
Mortgaged Property securing the Hohokam Towers Loan.
"Hohokam Towers Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated as of December 22, 2005, by and between
Wachovia
Bank, National Association, as A-Note Holder and MMA B-Note Value
Fund, LP,
as B-Note Holder relating to the Hohokam Towers Loan Pair.
"Hohokam Towers Loan": That certain Mortgage Loan which is
included in the Trust Fund (identified as loan number 22 on the
Mortgage Loan
Schedule).
"Hohokam Towers Loan Pair": The Hohokam Towers Loan, together
with the Hohokam Towers Companion Loan.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary
of
Housing and Urban Development pursuant to Section 207 of the
National Housing
Act.
"Hyatt Center Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated as of December 29, 2005 by and amount
Wachovia
Bank, National Association, as Note A-1 Lender, and Wachovia Bank,
National
Association, as Note A-2 Lender, relating to the Hyatt Center Whole
Loan.
"Hyatt Center Loan": That certain Mortgage Loan which is
included in the Trust Fund (identified as loan number 4 on the
Mortgage Loan
Schedule).
"Hyatt Center Pari Passu Companion Loan": That certain mortgage
loan evidenced by a note, which is not an asset of the Trust Fund,
secured by
the Mortgaged Property securing the Hyatt Center Loan and pari
passu in
priority with the Hyatt Center Loan.
"Hyatt Center Whole Loan": The Hyatt Center Loan, together with
the Hyatt Center Pari Passu Companion Loan.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person,
any such Person who (i) is in fact independent of the Depositor,
the Mortgage
Loan Sellers, the Master Servicer, the Special Servicer, the
Controlling
Class Representative, the Trustee, any Companion Holder and any and
all
Affiliates thereof, (ii) does not have any direct financial
interest in or
any material indirect financial interest in any of the Depositor,
the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer,
the
Controlling Class Representative, the Trustee, any Companion Holder
or any
Affiliate thereof, and (iii) is not connected with the Depositor,
the
Mortgage Loan Sellers, the Master Servicer, the Controlling
Class
Representative, the Special Servicer, the Trustee, any Companion
Holder or
any Affiliate thereof as an officer, employee, promoter,
underwriter,
trustee, partner, director or Person performing similar functions;
provided,
however, that a Person shall not fail to be Independent of the
Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Controlling
Class
Representative, the Special Servicer, the Trustee or any Affiliate
thereof
merely because such Person is the beneficial owner of 1% or less of
any class
of securities issued by the Depositor, the Mortgage Loan Sellers,
the Master
Servicer, the Special Servicer, the Controlling Class
Representative, the
Trustee or any Affiliate thereof, as the case may be.
"Independent Appraiser": An Independent professional real
estate
appraiser who is a member in good standing of the Appraisal
Institute, and,
if the State in which the subject Mortgaged Property is located
certifies or
licenses appraisers, certified or licensed in such State, and in
each such
case, who has a minimum of five years experience in the subject
property type
and market.
"Initial Purchaser": Each of Wachovia Capital Markets, LLC and
Nomura Securities International, Inc. or, in each case, its
successor in
interest.
"Independent Contractor": Any Person that would be an
"independent contractor" with respect to REMIC I within the meaning
of
Section 856(d)(3) of the Code if REMIC I were a real estate
investment trust
(except that the ownership test set forth in that section shall be
considered
to be met by any Person that owns, directly or indirectly, 35
percent or more
of any Class of Certificates, or such other interest in any Class
of
Certificates as is set forth in an Opinion of Counsel, which shall
be
delivered, at no expense to the Master Servicer, the Special
Servicer, the
Trustee or the Trust Fund, to the Trustee and the Master Servicer,
so long as
REMIC I does not receive or derive any income from such Person and
provided
that the relationship between such Person and REMIC I is at arm's
length, all
within the meaning of Treasury Regulations Section 1.856-4(b)(5)),
or any
other Person upon receipt by the Trustee of an Opinion of Counsel,
which
shall be at no expense to the Master Servicer, the Special
Servicer, the
Trustee or the Trust Fund, to the effect that the taking of any
action in
respect of any REO Property by such Person, subject to any
conditions therein
specified, that is otherwise herein contemplated to be taken by
an
Independent Contractor will not cause such REO Property to cease to
qualify
as "foreclosure property" within the meaning of Section 860G(a)(8)
of the
Code, or cause any income realized in respect of such REO Property
to fail to
qualify as Rents from Real Property.
"Institutional Accredited Investor": Institutional "accredited
investors" as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D
under the Securities Act or any entity in which all the equity
holders fall
within any such subsections.
"Insurance Policy": With respect to any Mortgage Loan, any
hazard insurance policy, flood insurance policy, title policy or
other
insurance policy that is maintained from time to time in respect of
such
Mortgage Loan or the related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy,
to the extent such proceeds are not applied to the restoration of
the related
Mortgaged Property, released to the Mortgagor, or any tenants or
ground
lessors, as the case may be, pursuant to the terms of the related
Mortgage or
lease, in accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.08(c).
"Intercreditor Agreement": Each of the Prime Outlets Pool
Intercreditor Agreement, the Hyatt Center Intercreditor Agreement,
the 620
Avenue of the Americas Intercreditor Agreement, the Hohokam
Towers
Intercreditor Agreement, the DEA/ATF Building Intercreditor
Agreement and the
SSA-Austin, TX Intercreditor Agreement, individually or
collectively, as the
context may require.
"Interest Accrual Period": With respect to each Class of
Regular
Certificates or the REMIC I Regular Interests and any Distribution
Date, the
calendar month immediately preceding the calendar month in which
such
Distribution Date occurs. Notwithstanding the foregoing,
each Interest
Accrual Period is deemed to consist of 30 days for purposes of
calculating
interest on the Regular Certificates or the REMIC I Regular
Interests.
"Interest Reserve Account": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) in trust
for
Certificateholders, which shall be entitled "Wells Fargo, Bank,
N.A., as
Trustee, on behalf of and in trust for the registered holders of
Wachovia
Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through
Certificates, Series 2006-C23".
"Interest Reserve Amount": With respect to each Interest
Reserve
Loan and each Distribution Date that occurs in February of each
year and in
January of each year that is not a leap year, an amount equal to
one day's
interest at the related Mortgage Rate (without regard to the second
proviso
in the definition thereof) on the related Stated Principal Balance
as of the
Due Date in the month in which such Distribution Date occurs (but
prior to
the application of any amounts owed on such Due Date), to the
extent a
Periodic Payment or P&I Advance is made in respect thereof for
such Due Date
as of the related P&I Advance Date.
"Interest Reserve Loan": Each Mortgage Loan that is an
Actual/360 Mortgage Loan.
"Interested Person": The Depositor, any Mortgage Loan Seller,
the Master Servicer, the Special Servicer, any Independent
Contractor hired
by the Special Servicer, any Holder of a Certificate, each
Companion Holder
(but only with respect to the related Co-Lender Loan) or any
Affiliate of any
such Person.
"Internet Website": The Internet Websites maintained by the
Trustee and, if applicable, the Master Servicer initially located
at
"www.ctslink.com" and "www.wachovia.com", respectively, or such
other address
as provided to the parties hereto from time to time.
"Investment
Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations
promulgated
thereunder.
"Late Collections": With respect to any Mortgage Loan or
Companion Loan, all amounts received thereon during any Collection
Period,
other than Penalty Interest, whether as payments, Insurance
Proceeds,
Liquidation Proceeds or otherwise, which represent late collections
of the
principal and/or interest portions of a Scheduled Payment (other
than a
Balloon Payment) or an Assumed Scheduled Payment in respect of such
Mortgage
Loan or Companion Loan due or deemed due on a Due Date in a
previous
Collection Period, and not previously recovered. With respect to any REO
Loan, all amounts received in connection with the related property
during any
Collection Period, whether as Insurance Proceeds, Liquidation
Proceeds, REO
Revenues or otherwise, which represent late collections of the
principal
and/or interest portions of a Scheduled Payment (other than a
Balloon
Payment) or an Assumed Scheduled Payment in respect of the
predecessor
Mortgage Loan or of an Assumed Scheduled Payment in respect of such
REO Loan
deemed due on a Due Date in a previous Collection Period and not
previously
recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of
the following events: (i) such Mortgage Loan is paid in full; (ii)
a Final
Recovery Determination is made with respect to such Mortgage Loan;
(iii) such
Mortgage Loan is repurchased by a Mortgage Loan Seller pursuant to
the
applicable Mortgage Loan Purchase Agreement; or (iv) such Mortgage
Loan is
purchased by the Majority Subordinate Certificateholder, the
Companion
Holders, the mezzanine lenders or the Special Servicer pursuant
to
Section 3.18(c), 3.18(d), 3.18(e) or 3.18(m), or by the Master
Servicer, the
Special Servicer or the Majority Subordinate Certificateholder
pursuant to
Section 9.01. With
respect to any REO Property (and the related REO Loan),
any of the following events: (i) a Final Recovery Determination is
made with
respect to such REO Property; (ii) such REO Property is purchased
by the
Master Servicer, the Special Servicer or the Majority
Subordinate
Certificateholder pursuant to Section 9.01; or (iii) such REO
Property is
purchased by the Companion Holder as described in Section
3.18(d).
"Liquidation Fee": With respect to each Mortgage Loan and REO
Loan, the fee payable to the Special Servicer out of certain
related
recoveries pursuant to the third paragraph of Section 3.11(c).
"Liquidation Fee Rate": With respect to all amounts set forth
in
the third paragraph of Section 3.11(c), 1.00%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the
Special
Servicer in connection with: (i) the taking of all or a part of a
Mortgaged
Property or REO Property by exercise of the power of eminent domain
or
condemnation, subject, however, to the rights of any tenants and
ground
lessors, as the case may be, and the rights of the Mortgagor under
the terms
of the related Mortgage; (ii) the liquidation of a Mortgaged
Property or
other collateral constituting security for a Defaulted Mortgage
Loan, through
trustee's sale, foreclosure sale, REO Disposition or otherwise,
exclusive of
any portion thereof required to be released to the related
Mortgagor in
accordance with applicable law and the terms and conditions of the
related
Mortgage Note and Mortgage; (iii) the realization upon any
deficiency
judgment obtained against a Mortgagor; (iv) the purchase of a
Defaulted
Mortgage Loan by the Majority Subordinate Certificateholder, the
related
Companion Holder, the mezzanine lenders or the Special Servicer
pursuant to
Section 3.18(c), Section 3.18(d), Section 3.18(e) or Section
3.18(m); (v) the
repurchase of a Mortgage Loan by a Mortgage Loan Seller pursuant to
the
applicable Mortgage Loan Purchase Agreement; (vi) the purchase of a
Mortgage
Loan or REO Property by the Master Servicer, the Special Servicer,
or the
Majority Subordinate Certificateholder pursuant to Section 9.01;
(vii) the
purchase of an REO Property by the Companion Holder pursuant to
Section 3.18(d); or (viii) the remittance by the applicable
Mortgage Loan
Seller of amounts specified in Section 2.03(g).
"Loan Group": Either Loan Group 1 or Loan Group 2.
"Loan Group 1": Collectively, all of the Mortgage Loans that
are
Group 1 Mortgage Loans and any successor REO Loans with respect
thereto.
"Loan Group 1 Available Distribution Amount": With respect to
any Distribution Date, that portion, if any, of the Available
Distribution
Amount attributable to Loan Group 1.
"Loan Group 1 Principal Distribution Amount": With respect to
any Distribution Date, that portion, if any, of the Principal
Distribution
Amount attributable to Loan Group 1.
"Loan Group 2": Collectively, all of the Mortgage Loans that
are
Group 2 Mortgage Loans and any successor REO Loans with respect
thereto.
"Loan Group 2 Available Distribution Amount": With respect to
any Distribution Date, that portion, if any, of the Available
Distribution
Amount attributable to Loan Group 2.
"Loan Group 2 Principal Distribution Amount": With respect to
any Distribution Date, that portion, if any, of the Principal
Distribution
Amount attributable to Loan Group 2.
"Loan Pair": Collectively, any Co-Lender Loan and its related
Companion Loan(s).
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of
any date of determination, a fraction, expressed as a percentage,
the
numerator of which is the then current principal amount of such
Mortgage
Loan, and the denominator of which is the Appraised Value of the
related
Mortgaged Property.
"Lockout Period": With respect to any Mortgage Note that
prohibits the Mortgagor from prepaying such Mortgage Loan until a
date
specified in such Mortgage Note, the period from the Closing Date
until such
specified date.
"Majority Subordinate Certificateholder": As of any date of
determination, any single Holder of Certificates (other than any
Holder which
is an Affiliate of the Depositor or the Mortgage Loan Seller)
entitled to
greater than 50% of the Voting Rights allocated to the Controlling
Class;
provided, however, that, if there is no single Holder of
Certificates
entitled to greater than 50% of the Voting Rights allocated to such
Class,
then the Majority Subordinate Certificateholder shall be the single
Holder of
Certificates with the largest percentage of Voting Rights allocated
to such
Class. With respect to
determining the Majority Subordinate
Certificateholder, the Class A-1 Certificates, the Class A-2
Certificates,
the Class A-3 Certificates, the Class A-PB Certificates, the Class
A-4
Certificates, the Class A-5 Certificates and the Class A-1A
Certificates
shall be deemed to be a single Class of Certificates, with such
Voting Rights
allocated among the Holders of Certificates of such Classes in
proportion to
the respective Certificate Principal Balances of such Certificates
as of such
date of determination.
"Master Servicer": Wachovia Bank, National Association, its
successor in interest (including the Trustee as successor pursuant
to
Section 7.02), or any successor master servicer appointed as herein
provided.
"Master Servicing Fee": With respect to each Mortgage Loan and
REO Loan the fee payable to the Master Servicer pursuant to Section
3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan
the percentage set forth under the column "Master Servicing Fee
Rate" on the
Mortgage Loan Schedule.
"Material Core Documents": As defined in Section 2.03.
"Memorandum": As defined in the Mortgage Loan Purchase
Agreement.
"Money Term": With respect to any Mortgage Loan, the maturity
date, Mortgage Rate, Stated Principal Balance, amortization term or
payment
frequency thereof or any provision thereof requiring the payment of
a
Prepayment Premium or Yield Maintenance Charge in connection with a
Principal
Prepayment (but not any late fees or default interest
provisions).
"Moody's": Moody's Investors Service, Inc., or its successor in
interest. If Moody's
nor any successor remains in existence, "Moody's" shall
be deemed to refer to such other nationally recognized statistical
rating
agency or other comparable Person designated by the Depositor,
notice of
which designation shall be given to the Trustee, the Master
Servicer and the
Special Servicer, and specific ratings of Moody's herein referenced
shall be
deemed to refer to the equivalent ratings of the party so
designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage,
deed of trust, deed to secure debt or similar instrument that
secures the
Mortgage Note and creates a lien on the fee or leasehold interest
in the
related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan
as to which the Mortgage Rate has been reduced through a
modification and any
Distribution Date, the amount by which (a) interest accrued at such
reduced
rate is less than (b) the amount of interest that would have
accrued on such
Mortgage Loan at the Mortgage Rate before such reduction, to the
extent such
amount has been added to the outstanding principal balance of such
Mortgage
Loan.
"Mortgage File": With respect to any Mortgage Loan,
collectively
the following documents:
(i) the
original executed Mortgage Note including any
power of attorney related to the execution thereof, together
with
any and all intervening endorsements thereon, endorsed on its
face or by allonge attached thereto (without recourse,
representation or warranty, express or implied) to the order of
"Wells Fargo Bank, N.A., as trustee for the registered holders
of
Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2006-C23", or in blank (or a
lost note affidavit and indemnity with a copy of such Mortgage
Note attached thereto);
(ii)
an original or copy of the Mortgage, together
with any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office)
with
evidence of recording indicated thereon or certified by the
applicable recording office;
(iii) an
original or copy of any related Assignment
of Leases (if such item is a document separate from the
Mortgage), together with any and all intervening assignments
thereof, in each case (unless not yet returned by the
applicable
recording office) with evidence of recording indicated thereon
or
certified by the applicable recording office;
(iv)
an original executed assignment, in recordable
form (except for any missing recording information), of (a) the
Mortgage, (b) any related Assignment of Leases (if such item is
a
document separate from the Mortgage and to the extent not
already
assigned pursuant to preceding clause (a)) and (c) any other
recorded document relating to the Mortgage Loan otherwise
included in the Mortgage File, in favor of "Wells Fargo Bank,
N.A., as trustee for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2006-C23", or in blank;
(v) an
original assignment of all unrecorded documents
relating to the Mortgage Loan (to the extent not already
assigned
pursuant to clause (iv) above), in favor of "Wells Fargo Bank,
N.A., as trustee for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates, Series 2006-C23", or in blank;
(vi)
originals or copies of any modification,
consolidation, assumption and substitution agreements in those
instances where
the terms or provisions of the Mortgage or
Mortgage Note have been consolidated or modified or the
Mortgage
Loan has been assumed or consolidated;
(vii) the
original or a copy of the policy or
certificate of lender's title insurance or, if such policy has
not been issued or located, an original or copy of an
irrevocable, binding commitment (which may be a marked version
of
the policy that has been executed by an authorized
representative
of the title company, a "pro forma" title policy, or an
agreement
to provide the same pursuant to binding escrow instructions
executed by an authorized representative of the title company)
to
issue such title insurance policy;
(viii) any filed
copies (bearing evidence of filing)
or other evidence of filing satisfactory to the Trustee of any
prior UCC Financing Statements in favor of the originator of
such
Mortgage Loan or in favor of any assignee prior to the Trustee
(but only to the extent the Mortgage Loan Seller had possession
of such UCC Financing Statements prior to the Closing Date)
and,
if there is an effective UCC Financing Statement and
continuation
statement in favor of the Mortgage Loan Seller on record with
the
applicable public office for UCC Financing Statements, an
original UCC Amendment, in form suitable for filing in favor of
"Wells Fargo Bank, N.A., as trustee for the registered holders
of
Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series 2006-C23, as assignee", or in
blank;
(ix)
an original or copy of (A) any Ground Lease,
Memorandum of Ground Lease and ground lessor estoppel, and (B)
any loan guaranty or indemnity and (C) any environmental
insurance policy;
(x) any
intercreditor agreement relating to permitted
debt (including, without limitation, mezzanine debt) of the
Mortgagor;
(xi)
copies of any loan agreement, escrow agreement
or security agreement relating to such Mortgage Loan;
(xii) a
copy of any letter of credit and related
transfer documents relating to such Mortgage Loan;
(xiii) copies of
any management agreements and
applicable transfer or assignment documents;
(xiv)
copies of any cash management agreements and
applicable transfer or assignment documents;
(xv)
copies of franchise agreements and franchisor
comfort letters, if any, for hospitality properties and
applicable transfer or assignment documents; and
(xvi) with
respect to any Companion Loan, all of the
above documents with respect to such Companion Loan and the
related Intercreditor Agreement; provided that a copy of each
Mortgage Note relating to such Companion Loan, rather than the
original, shall be provided, and no assignments shall be
provided;
provided that, whenever the term "Mortgage File" is used to
refer
to documents actually received by the Trustee or by a Custodian on
its
behalf, such term shall not be deemed to include such documents
required to
be included therein unless they are actually so received, and with
respect to
any receipt or certification by the Trustee or the Custodian for
documents
described in clauses (vi) and (ix) (solely with respect to any
guaranty) of
this definition, shall be deemed to include only such documents to
the extent
the Trustee or Custodian has actual knowledge of their
existence.
Notwithstanding the foregoing, with respect to the 2005-C22
Serviced Mortgage Loan, the "Mortgage File" will consist of the
original note
(or lost note affidavit, if applicable) specified in clause (i)
above, and a
photocopy of each additional document in the Mortgage File held by
the
2005-C22 Trustee.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned to the Trust Fund pursuant to Section 2.01 and listed on
the
Mortgage Loan Schedule and from time to time held in the Trust
Fund. As used
herein, the term "Mortgage Loan" includes the related Mortgage
Note,
Mortgage, and other security documents contained in the related
Mortgage
File. Unless otherwise
indicated, as used in this Agreement, the term
"Mortgage Loan" does not include any Companion Loan.
"Mortgage Loan Purchase Agreement": Each of the Wachovia
Mortgage Loan Purchase Agreement, the Nomura Mortgage Loan Purchase
Agreement
and the Artesia Mortgage Loan Purchase Agreement, individually
or
collectively, as the context may require.
"Mortgage Loan Schedule": The list of Mortgage Loans
transferred
on the Closing Date to the Trustee as part of REMIC I, attached
hereto as
Exhibit B and in a computer readable format. Such list shall set forth the
following information with respect to each Mortgage Loan:
(i) the
Mortgage Loan number;
(ii)
the street address (including city, county,
state and zip code) and name of the related Mortgaged Property;
(iii) the
Cut-Off Date Balance;
(iv)
the amount of the Periodic Payment due on the
first Due Date following the Closing Date;
(v) the
original Mortgage Rate;
(vi)
the (A) original term to stated maturity, (B)
remaining term to stated maturity and (C) the Stated Maturity
Date and, in the case of an ARD Loan, the Anticipated Repayment
Date;
(vii) in
the case of a Balloon Mortgage Loan, the
remaining amortization term;
(viii) the
original and remaining amortization term;
(ix)
whether the Mortgage Loan is secured by a
Ground Lease;
(x) the Master
Servicing Fee Rate;
(xi)
whether such Mortgage Loan is an ARD Loan and
if so the Anticipated Repayment Date and Additional Interest
Rate
for such ARD Loan;
(xii) the
related Mortgage Loan Seller;
(xiii) whether
such Mortgage Loan is insured by an
environmental policy;
(xiv)
whether such Mortgage Loan is cross-defaulted
or cross-collateralized with any other Mortgage Loan;
(xv)
whether such Mortgage Loan is a Defeasance Loan;
(xvi)
whether the Mortgage Loan is secured by a
letter of credit;
(xvii) whether
such Mortgage Loan is an Interest
Reserve Loan;
(xviii) whether
payments on such Mortgage Loan are made
to a lock-box;
(xix) the
amount of any Reserve Funds escrowed in
respect of each Mortgage Loan;
(xx)
the number of units or square feet related to
the Mortgaged Property;
(xxi) the
number of grace days after the Due Date
until Periodic Payments incur late payment charges; and
(xxii) the
applicable Loan Group to which such
Mortgage Loan belongs.
"Mortgage Loan Seller": Each of Wachovia, Nomura and Artesia,
or
their respective successors in interest, individually or
collectively as the
context may require.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion
Loan, together
with any rider, addendum or amendment thereto, or any renewal,
substitution
or replacement of such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and
any
successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or
prior to its Stated Maturity Date, the fixed annualized rate, not
including
any Additional Interest Rate, at which interest is scheduled (in
the absence
of a default) to accrue on such Mortgage Loan from time to time in
accordance
with the related Mortgage Note and applicable law; (ii) any
Mortgage Loan
after its Stated Maturity Date, the annualized rate described in
clause
(i) above determined without regard to the passage of such Stated
Maturity
Date, but giving effect to any modification thereof as contemplated
by
Section 3.20; and (iii) any REO Loan, the annualized rate described
in clause
(i) or (ii), as applicable, above determined as if the predecessor
Mortgage
Loan had remained outstanding; provided, however, that if any
Mortgage Loan
does not accrue interest on the basis of a 360-day year consisting
of twelve
30-day months, then, solely for purposes of calculating the
Pass-Through
Rates, the Mortgage Rate of such Mortgage Loan for any one-month
period
preceding a related Due Date will be the annualized rate at which
interest
would have to accrue in respect of such Mortgage Loan on the basis
of a
360-day year consisting of twelve 30-day months in order to produce
the
aggregate amount of interest actually accrued (exclusive of Penalty
Interest
or Additional Interest) in respect of such Mortgage Loan during
such
one-month period at the related Mortgage Rate; provided, however,
that,
solely for the purposes of calculating the Pass-Through Rates, with
respect
to each Interest Reserve Loan, the Mortgage Rate for the one-month
period (A)
preceding the Due Dates that occur in January and February in any
year which
is not a leap year or preceding the Due Date that occurs in
February in any
year which is a leap year will be determined exclusive of the
Interest
Reserve Amounts for such months (in each case unless such Due Date
occurs in
a January or February in which the final Distribution Date occurs),
and (B)
preceding the Due Date in March, and in the event the final
Distribution Date
occurs in February or, if such year is not a leap year, in January,
preceding
the Due Date in such February or January, will be determined
inclusive of the
Interest Reserve Amounts for the immediately preceding February
and, if
applicable, January; provided, further, that, if the Mortgage Rate
of the
related Mortgage Loan has been modified in connection with a
bankruptcy or
similar proceeding involving the related Mortgagor or a
modification, waiver
or amendment granted or agreed to by the Special Servicer pursuant
to
Section 3.20, solely for purposes of calculating the Pass-Through
Rate, the
Mortgage Rate for such Mortgage Loan shall be calculated without
regard to
such event.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note,
including without limitation, any Person that has acquired the
related
Mortgaged Property and assumed the obligations of the original
obligor under
the Mortgage Note and/or, in the case of an indemnity deed of
trust, the
entity which granted the lien on such Mortgaged Property.
"Net Aggregate Prepayment Interest Shortfall": With respect to
any Distribution Date, the amount, if any, by which (a) the
aggregate of all
Prepayment Interest Shortfalls incurred in connection with the
receipt of
Principal Prepayments on the Mortgage Loans during the related
Collection
Period, exceeds (b) the aggregate amount deposited by the Master
Servicer in
the Certificate Account for such Distribution Date pursuant to
Section 3.19(a) in connection with such Prepayment Interest
Shortfalls on the
Mortgage Loans. For
purposes of calculating the Prepayment Interest
Shortfall with respect to the 2005-C22 Serviced Mortgage Loan,
Prepayment
Interest Shortfalls will be allocated in accordance with the
2005-C22 Pooling
and Servicing Agreement. The portion of such shortfall
allocated to the
2005-C22 Serviced Mortgage Loan, net of amounts payable by the
2005-C22
Master Servicer, will be included in the Net Aggregate Prepayment
Interest
Shortfall. For
purposes of calculating the Prepayment Interest Shortfall
with respect to the Prime Outlets Pool Loan, such Prepayment
Interest
Shortfall will be calculated with respect to each of, and allocated
pro rata
among, the promissory notes related to the Prime Outlets Pool Loan
and the
Prime Outlets Pool Pari Passu Companion Loan. The portion of such shortfall
allocated to the Prime Outlets Pool Loan, net of amounts payable by
the
Master Servicer, will be included in the Net Aggregate Prepayment
Interest
Shortfall. For
purposes of calculating the Prepayment Interest Shortfall
with respect to the Co-Lender Loans (other than the Prime Outlets
Pool Loan
and the Hyatt Center Loan), Prepayment Interest Shortfalls will be
allocated
first to the promissory note evidencing the related Subordinate
Companion
Loan, if any, and second to the promissory note evidencing the
related
Co-Lender Loan. The
portion of such shortfall allocated to the Co-Lender
Loans, net of amounts payable by the Master Servicer, will be
included in the
Net Aggregate Prepayment Interest Shortfall.
"Net Investment Earnings": With respect to (i) the Certificate
Account, any Servicing Account, any Special Reserve Account, any
Reserve
Account or the REO Account (if any) for any Collection Period and
(ii) the
Distribution Account, the Interest Reserve Account, the Additional
Interest
Account and the Companion Distribution Account (if any) for the
related
Distribution Date, the amount, if any, by which the aggregate of
all interest
and other income realized during such Collection Period with
respect to the
accounts described in clause (i) above and as of such related
Distribution
Date with respect to the accounts described in clause (ii) above on
funds
held in such accounts, exceeds the aggregate of all losses, if any,
incurred
during such Collection Period with respect to the accounts
described in
clause (i) above and as of such related Distribution Date with
respect to the
accounts described in clause (ii) above in connection with the
investment of
such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to (i) the Certificate
Account, any Servicing Account, any Special Reserve Account, any
Reserve
Account or the REO Account (if any) for any Collection Period and
(ii) the
Distribution Account, the Interest Reserve Account, the Additional
Interest
Account and the Companion Distribution Account (if any) for the
related
Distribution Date, the amount by which the aggregate of all losses,
if any,
incurred during such Collection Period with respect to the accounts
described
in clause (i) above and as of such related Distribution Date with
respect to
the accounts described in clause (ii) above in connection with the
investment
of funds held in such accounts in accordance with Section 3.06,
exceeds the
aggregate of all interest and other income realized during such
Collection
Period with respect to the accounts described in clause (i) above
and as of
such related Distribution Date with respect to the accounts
described in
clause (ii) above on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or any
REO Loan, as of any date of determination, a rate per annum equal
to the
related Mortgage Rate minus the sum of the Trustee Fee Rate and
the
applicable Master Servicing Fee Rate.
"Net Operating Income" or "NOI": As defined in and determined
in
accordance with the provisions of Exhibit E attached hereto.
"New Lease": Any lease of REO Property (other than with respect
to the 2005-C22 Serviced Mortgage Loan under the 2005-C22 Pooling
and
Servicing Agreement) entered into at the direction of the Special
Servicer on
behalf of REMIC I, including any lease renewed, modified or
extended on
behalf of such REMIC if such REMIC has the right to renegotiate the
terms of
such lease.
"Nomura": Nomura Credit & Capital, Inc., or its successor
in
interest.
"Nomura Mortgage Loan Purchase Agreement": That certain
mortgage
loan purchase agreement, dated as of March 1, 2006, between the
Depositor and
Nomura, and relating to the transfer of the Nomura Mortgage Loans
to the
Depositor.
"Nomura Mortgage Loans": Each of the Mortgage Loans transferred
and assigned to the Depositor pursuant to the Nomura Mortgage Loan
Purchase
Agreement.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance; provided that Workout-Delayed
Reimbursement
Amounts shall constitute a Nonrecoverable Advance only when the
Person making
such determination in accordance with the procedures specified in
the
definition of Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance,
as applicable, and taking into account factors such as all other
outstanding
Advances, either (a) has determined in accordance with the
Servicing Standard
or the standards applicable to the Trustee as set forth in the
definitions of
"Nonrecoverable P&I Advance" and "Nonrecoverable Servicing
Advance" that such
Workout-Delayed Reimbursement Amounts would not ultimately be
recoverable
from Late Collections, Insurance Proceeds or Liquidation Proceeds,
or any
other recovery on or in respect of the related Mortgage Loan or REO
Loan or
(b) has determined in accordance with the Servicing Standard or
such other
applicable standard that such Workout-Delayed Reimbursement
Amounts, along
with any other Workout-Delayed Reimbursement Amounts and
Nonrecoverable
Advances, would not ultimately be recoverable from the portion of
Late
Collections, Insurance Proceeds or Liquidation Proceeds in respect
of the
pool of the Mortgage Loans or REO Loans allocable to principal, or
any other
recovery on or in respect of the pool of Mortgage Loans or REO
Loans
allocable to principal.
"Nonrecoverable P&I Advance": Any P&I Advance previously
made or
proposed to be made in respect of any Mortgage Loan, the Prime
Outlets Pool
Pari Passu Companion Loan or any REO Loan by the Master Servicer or
the
Trustee, as the case may be, or, in the case of the 2005-C22
Serviced
Mortgage Loan, previously made or proposed to be made by the
2005-C22 Master
Servicer, the Master Servicer or the Trustee, as applicable, that,
as
determined by the Master Servicer, the Special Servicer, the
Trustee or the
2005-C22 Master Servicer, as applicable, in accordance with the
Servicing
Standard (in the case of the Master Servicer or the Special
Servicer), the
"Servicing Standard" as defined in the 2005-C22 Pooling and
Servicing
Agreement (in the case of the 2005-C22 Master Servicer) or the
standard of
care set forth in Section 8.01(a) (with respect to the Trustee),
as
applicable, with respect to such P&I Advance will not be
ultimately
recoverable from Late Collections, Insurance Proceeds or
Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage
Loan, Prime
Outlets Pool Pari Passu Companion Loan, REO Loan or 2005-C22
Serviced
Mortgage Loan; provided that the Master Servicer will be permitted
to
conclusively rely upon any such nonrecoverability determination
made by the
Special Servicer and, with respect to the 2005-C22 Serviced
Mortgage Loan
only, the 2005-C22 Master Servicer.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously made or proposed to be made in respect of a Mortgage
Loan, REO
Loan or Companion Loan by the Master Servicer, the Special Servicer
or the
Trustee, as the case may be, or, in the case of the 2005-C22
Serviced
Mortgage Loan, made by the 2005-C22 Master Servicer, that, as
determined by
the Master Servicer, the Special Servicer, the Trustee or the
2005-C22 Master
Servicer, as applicable, in accordance with the Servicing Standard
(in the
case of the Master Servicer or the Special Servicer), the
"Servicing
Standard" as defined in the 2005-C22 Pooling and Servicing
Agreement (in the
case of the 2005-C22 Master Servicer) or the standard of care set
forth in
Section 8.01(a) (with respect to the Trustee), as applicable, will
not be
ultimately recoverable from Late Collections, Insurance Proceeds,
Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage
Loan,
Companion Loan, REO Property or the 2005-C22 Serviced Mortgage
Loan, as
applicable; provided that the Master Servicer will be permitted
to
conclusively rely upon any such nonrecoverability determination
made by the
Special Servicer.
"Non-Registered Certificate": Unless and until registered under
the Securities Act, Class X-C, Class X-P, Class G, Class H, Class
J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S,
Class Z,
Class R-I or Class R-II Certificate.
"Non-United States Person": Any Person other than a United
States Person.
"Officer's Certificate": A certificate signed by a Servicing
Officer of the Master Servicer or the Special Servicer, as the case
may be,
or by a Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel (which
counsel may be a salaried counsel for the Depositor, the Master
Servicer or
the Special Servicer) acceptable to and delivered to the Trustee or
the
Master Servicer, as the case may be, except that any opinion of
counsel
relating to (a) the qualification of REMIC I or REMIC II as a
REMIC; (b) the
qualification of the Additional Interest Grantor Trust as a grantor
trust;
(c) compliance with the REMIC Provisions or the Grantor Trust
Provisions or
(d) the resignation of the Master Servicer or the Special Servicer
pursuant
to Section 6.04 must be an opinion of counsel who is in fact
Independent of
the Master Servicer, the Special Servicer or the Depositor, as
applicable.
"Option Price": As defined in Section 3.18(c).
"Original Class Principal Balance": With respect to any Class
of
Sequential Pay Certificates, the Original Class Principal Balance
thereof as
of the Closing Date, in each case as specified in the Preliminary
Statement.
"Original Class X-C Notional Amount": $4,229,859,029.
"Original Class X-P Notional Amount": $4,069,646,000.
"Original Notional Amount": The Original Class X-C Notional
Amount or the Original Class X-P Notional Amount, as the context
requires.
"OTS": The Office of Thrift Supervision or any successor
thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any
other
interest therein, whether direct or indirect, legal or beneficial,
as owner
or as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any
advance
made by the Master Servicer or the Trustee pursuant to Section
4.03(a) and
(b) as applicable.
"P&I Advance Date": The Business Day immediately preceding
each
Distribution Date.
"Pari Passu Companion Loan": Each of the Prime Outlets Pool
Pari
Passu Companion Loan and the Hyatt Center Pari Passu Companion
Loan.
"Pari Passu Mortgage Loan": Each of the Prime Outlets Pool Loan
and the Hyatt Center Loan.
"Pass-Through Rate": With respect to:
(i) the Class
A-1 Certificates for any Distribution
Date, 5.203% per annum;
(ii)
the
Class A-2 Certificates for any Distribution
Date, 5.416% per annum;
(iii) the
Class A-3 Certificates for any Distribution
Date, 5.496% per
annum;
(iv)
the Class A-PB Certificates for any
Distribution Date, 5.446% per annum;
(v) the Class
A-4 Certificates for any Distribution
Date, the lesser of (1) 5.418% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(vi)
the Class A-5 Certificates for any Distribution
Date, the lesser of (1) 5.416% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(vii) the
Class A-1A Certificates for any
Distribution Date, the lesser of (1) 5.422% per annum and (2)
the
Weighted Average Net Mortgage Rate for such date;
(viii) the Class
A-M Certificates for any Distribution
Date, the lesser of (1) 5.466% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(ix)
the Class A-J Certificates for any Distribution
Date, the lesser of (1) 5.515% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(x) the Class
B Certificates for any Distribution
Date, the Weighted Average Net Mortgage Rate for such date
minus
0.09%;
(xi)
the Class C Certificates for any Distribution
Date, the Weighted Average Net Mortgage Rate for such date
minus
0.07%;
(xii) the
Class D Certificates for any Distribution
Date, the
Weighted Average Net Mortgage Rate for such date minus
0.03%;
(xiii) the Class
E Certificates for any Distribution
Date, the Weighted Average Net Mortgage Rate for such date;
(xiv)
the Class
F Certificates for any Distribution
Date, the Weighted Average Net Mortgage Rate for such date;
(xv)
the Class G Certificates for any Distribution
Date, the Weighted Average Net Mortgage Rate for such date;
(xvi) the
Class H Certificates for any Distribution
Date, the Weighted Average Net Mortgage Rate for such date;
(xvii) the Class
J Certificates for any Distribution
Date, the Weighted Average Net Mortgage Rate for such date;
(xviii) the Class K
Certificates for any Distribution
Date, the Weighted Average Net Mortgage Rate for such date;
(xix) the
Class L Certificates for any Distribution
Date, the lesser of (1) 5.064% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(xx)
the Class M Certificates for any Distribution
Date, the lesser of (1) 5.064% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(xxi) the
Class N Certificates for any Distribution
Date, the lesser of (1) 5.064% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(xxii) the Class
O Certificates for any Distribution
Date, the lesser of (1) 5.064% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(xxiii) the Class P
Certificates for any Distribution
Date, the lesser of (1) 5.064% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(xxiv) the Class
Q Certificates for any Distribution
Date, the lesser of (1) 5.064% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(xxv) the
Class S Certificates for any Distribution
Date, the lesser of (1) 5.059% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(xxvi) the Class
X-C Certificates (1) for the initial
Distribution Date, 0.052% per annum, and (2) for any subsequent
Distribution Date, the weighted average of the Class X-C Strip
Rates for the respective Class X-C Components for such
Distribution Date; provided, however, that the Pass-Through
Rate
applicable to the Class X-C Certificates, in no circumstance
shall be less than zero;
(xxvii) the Class X-P
Certificates for the initial
Distribution Date, 0.250% per annum, and for any subsequent
Distribution Date, the weighted average of the Class X-P Strip
Rates for the respective Class X-P Components for such
Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding
immediately prior to such Distribution Date).
"Paying Agent": The paying agent appointed pursuant to
Section 8.16. If no
such paying agent has been appointed or if such paying
agent has been so appointed but the Trustee has terminated such
appointment,
then the Trustee shall be the Paying Agent.
"Penalty Interest": With respect to any Mortgage Loan or
Companion Loan (or successor REO Loan), any amounts collected
thereon, other
than late payment charges, Additional Interest, Prepayment Premiums
or Yield
Maintenance Charges, that represent penalty interest (arising out
of a
default) in excess of interest on the Stated Principal Balance of
such
Mortgage Loan or Companion Loan (or successor REO Loan) accrued at
the
related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate,
the portion of the relevant Class evidenced by such Certificate,
expressed as
a percentage, the numerator of which is the Certificate Principal
Balance or
Certificate Notional Amount, as the case may be, of such
Certificate as of
the Closing Date, as specified on the face thereof, and the
denominator of
which is the Original Class Principal Balance or Original Notional
Amount, as
the case may be, of the relevant Class. With respect to a Residual
Certificate or Class Z Certificate, the percentage interest in
distributions
to be made with respect to the relevant Class, as stated on the
face of such
Certificate.
"Periodic Payment": With respect to any Mortgage Loan or
Companion Loan as of any Due Date, the scheduled payment of
principal and/or
interest on such Mortgage Loan or Companion Loan (exclusive of
Additional
Interest), including any Balloon Payment, that is actually payable
by the
related Mortgagor from time to time under the terms of the related
Mortgage
Note (as such terms may be changed or modified in connection with
a
bankruptcy or similar proceeding involving the related Mortgagor or
by reason
of a modification, waiver or amendment granted or agreed to by the
Special
Servicer pursuant to Section 3.20).
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of
the Trustee
if otherwise qualifying hereunder):
(i) direct
obligations of, or obligations fully
guaranteed as to timely payment of principal and interest by,
the
United States or any agency or instrumentality thereof (having
original maturities of not more than 365 days); provided such
obligations are backed by the full faith and credit of the
United
States. Such
obligations must be limited to those instruments
that have a predetermined fixed dollar amount of principal due
at
maturity that cannot vary or change or be liquidated prior to
maturity. Interest may
either be fixed or variable. If such
interest is variable, interest must be tied to a single
interest
rate index plus a single fixed spread (if any), and move
proportionately with that index;
(ii)
repurchase obligations with respect to any
security described in clause (i) above (having original
maturities of not more than 365 days); provided that the
short-term deposit or debt obligations, of the party agreeing
to
repurchase such obligations are rated in the highest rating
categories of each of S&P and Moody's or such lower rating
as
will not result in qualification, downgrading or withdrawal of
the ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies. In addition, its terms must
have
a predetermined fixed dollar amount of principal due at
maturity
that cannot vary or change. Interest may either be fixed
or
variable. If such
interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if
any),
and move proportionately with that index;
(iii)
certificates of deposit, time deposits, demand
deposits and bankers' acceptances of any bank or trust company
organized under the laws of the United States or any state
thereof (having original maturities of not more than 365 days),
the short term obligations of which are rated in the highest
rating categories of each of S&P and Moody's or such lower
rating
as will not result in qualification, downgrading or withdrawal
of
the ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies. In addition, its terms should
have a
predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. In addition, its terms must
have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. Interest may either be
fixed or variable. If
such interest is variable, interest must
be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
(iv)
commercial paper (having original maturities of
not more than 365 days) of any corporation incorporated under
the
laws of the United States or any state thereof (or if not so
incorporated, the commercial paper is United States Dollar
denominated and amounts payable thereunder are not subject to
any
withholding imposed by any non-United States jurisdiction)
which
is rated in the highest rating category of each of S&P and
Moody's or such lower rating as will not result in
qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies.
The commercial paper by its terms must have a predetermined
fixed
dollar amount of principal due at maturity that cannot vary or
change. Interest may
either be fixed or variable. If such
interest is variable, interest must be tied to a single
interest
rate index plus a single fixed spread (if any), and move
proportionately with that index;
(v) units of
money market funds that maintain a
constant asset value and which are rated in the highest
applicable
rating category by Moody's and which are rated "AAAm" or "AAAm G"
by
S&P (or such lower rating as will not result in
qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies)
and
which seeks to maintain a constant net asset value. In addition,
its
terms must have a predetermined fixed dollar amount of principal
due
at maturity that cannot vary or change; and
(vi)
any other obligation or security that
constitutes a "cash flow investment" within the meaning of
Section 860G(a)(6) of the Code and is acceptable to each Rating
Agency, evidence of which acceptability shall be provided in
writing by each Rating Agency to the Master Servicer, the
Special
Servicer and the Trustee; provided, however, in no event shall
such other obligation or security be rated less than "AA/A-1"
or
"Aa3/P+" by S&P or Moody's, respectively;
provided that (1) no investment described hereunder shall evidence
either the
right to receive (x) only interest with respect to such investment
or (y) a
yield to maturity greater than 120% of the yield to maturity at par
of the
underlying obligations; and (2) no investment described hereunder
may be
purchased at a price greater than par if such investment may be
prepaid or
called at a price less than its purchase price prior to stated
maturity.
"Permitted Transferee": Any Transferee of a Residual
Certificate
other than a Disqualified Organization, a Plan, a Disqualified
Non-United
States Person, a partnership any partner of which, directly or
indirectly
(except through a U.S. corporation), is a Disqualified Non-United
States
Person or a United States Person with respect to whom income on the
Residual
Certificate is allocable to a foreign permanent establishment or
fixed base,
within the meaning of an applicable income tax treaty, of such
Person or any
other United States Person.
"Person": Any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability
company, trust,
unincorporated organization or government or any agency or
political
subdivision thereof.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year
of (i) REMIC I or (ii) REMIC II, the Holder of Certificates holding
the
largest Percentage Interest of the related Class of Residual
Certificates.
"Preliminary Memorandum": As defined in the Mortgage Loan
Purchase Agreement.
"Preliminary Prospectus Supplement": As defined in the Mortgage
Loan Purchase Agreement.
"Prepayment Assumption": For purposes of determining the
accrual
of original issue discount, market discount and premium, if any, on
the
Certificates for federal income tax purposes, 0% CPR (within the
meaning of
the Prospectus), except that it is assumed that each ARD Loan is
repaid on
its Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part
during any
Collection Period, which Principal Prepayment was applied to such
Mortgage
Loan following such Mortgage Loan's Due Date in such Collection
Period, the
amount of interest (net of the related Master Servicing Fee and,
if
applicable, the Additional Interest) accrued on the amount of such
Principal
Prepayment during the period from and after such Due Date and
ending on the
date such Principal Prepayment was applied to such Mortgage Loan,
to the
extent collected (exclusive of any related Prepayment Premium or
Yield
Maintenance Charge actually collected).
"Prepayment Interest Shortfall": With respect to any Mortgage
Loan that was subject to a Principal Prepayment in full or in part
during any
Collection Period, which Principal Prepayment was applied to such
Mortgage
Loan prior to such Mortgage Loan's Due Date in such Collection
Period, the
amount of interest, to the extent not collected from the related
Mortgagor
(without regard to any Prepayment Premium or Yield Maintenance
Charge
actually collected), that would have accrued at a rate per annum
equal to the
sum of (x) the related Net Mortgage Rate for such Mortgage Loan and
(y) the
Trustee Fee Rate on the amount of such Principal Prepayment during
the period
commencing on the date as of which such Principal Prepayment was
applied to
such Mortgage Loan and ending on the day immediately preceding such
Due Date,
inclusive.
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield Maintenance Charge) paid or payable, as the context requires,
by a
Mortgagor in connection with a Principal Prepayment.
"Primary Collateral": With respect to any Crossed Loan, that
portion of the Mortgaged Property designated as directly securing
such
Crossed Loan and excluding any Mortgaged Property as to which the
related
lien may only be foreclosed upon by exercise of the
cross-collateralization
provisions of such Crossed Loan.
"Prime Outlets Pool Intercreditor Agreement": The Intercreditor
and Servicing Agreement, dated as of March 7, 2006, by and between
Wachovia
Bank, National Association, as Note A-1 Lender, and Wachovia Bank,
National
Association, as Note A-2 Lender, relating to the Prime Outlets Pool
Whole
Loan.
"Prime Outlets Pool Loan": That certain Mortgage Loan which is
included in the Trust Fund (identified as loan number 1 on the
Mortgage Loan
Schedule).
"Prime Outlets Pool Pari Passu Companion Loan": That certain
mortgage loan evidenced by a note, which is not an asset of the
Trust Fund,
secured by the Mortgaged Property securing the Prime Outlets Pool
Loan and
pari passu in priority with the Prime Outlets Pool Loan.
"Prime Outlets Pool Whole Loan": The Prime Outlets Pool Loan,
collectively with the Prime Outlets Pool Pari Passu Companion
Loan.
"Prime Rate": The "prime rate" published in the "Money Rates"
section of The Wall Street Journal, as such "prime rate" may change
from time
to time. If The Wall
Street Journal ceases to publish the "prime rate," then
the Master Servicer shall select an equivalent publication that
publishes
such "prime rate"; and if such "prime rate" is no longer generally
published
or is limited, regulated or administered by a governmental or
quasi-governmental body, then the Master Servicer shall select a
comparable
interest rate index.
In either case, such selection shall be made by the
Master Servicer in its sole discretion and the Master Servicer
shall notify
the Trustee and the Special Servicer in writing of its
selection.
"Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the following:
(a) the
aggregate of the principal portions of all Scheduled
Payments
(other than Balloon Payments) and any Assumed Scheduled
Payments due or
deemed due in respect of the Mortgage Loans for their
respective
Due Dates occurring during the related Collection Period, to
the extent
not previously received or advanced with respect to a
Distribution Date prior to the related Collection Period;
(b) the
aggregate of all Principal Prepayments received on the
Mortgage
Loans during the related Collection Period;
(c) with respect
to any Mortgage Loan as to which the related
Stated
Maturity Date occurred during or prior to the related
Collection
Period,
any payment of principal (other than a Principal Prepayment)
made by or
on behalf of the related Mortgagor during the related
Collection
Period (including any Balloon Payment), in each case net of
any
portion of such payment that represents a recovery of the
principal
portion of
any Scheduled Payment (other than a Balloon Payment) due, or
the
principal portion of any Assumed Scheduled Payment deemed due,
in
respect of
such Mortgage Loan on a Due Date during or prior to the
related
Collection Period and not previously recovered;
(d) the
aggregate of the principal portion of all Liquidation
Proceeds,
Insurance Proceeds and, to the extent not otherwise included
in clause
(a), (b) or (c) above, payments that were received on the
related
Mortgage Loans during the related Collection Period and that
were
identified and applied by the Master Servicer and/or Special
Servicer
as recoveries of principal of such Mortgage Loans, in each
case net
of any portion of such amounts that represents a recovery of
the
principal portion of any Scheduled Payment (other than a
Balloon
Payment)
due, or of the principal portion of any Assumed Scheduled
Payment
deemed due, in respect of the related Mortgage Loan on a Due
Date
during or prior to the related Collection Period and not
previously
recovered;
(e) with respect
to any REO Properties, the aggregate of the
principal
portions of all Assumed Scheduled Payments deemed due in
respect of
the related REO Loans for their respective Due Dates
occurring
during the related Collection Period;
(f) with respect
to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that
were
received
during the related Collection Period on such REO Properties
and that
were identified and applied by the Master Servicer and/or
Special
Servicer as recoveries of principal of the related REO Loans,
in each
case net of any portion of such amounts that represents a
recovery
of the principal portion of any Scheduled Payment (other than
a Balloon
Payment) due, or of the principal portion of any Assumed
Scheduled
Payment deemed due, in respect of the related REO Loan or the
predecessor Mortgage Loan on a Due Date during or prior to the
related
Collection
Period and not previously recovered;
(g) if such
Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal
Distribution
Amount for
the immediately preceding Distribution Date, over the
aggregate
distributions of principal made on the Sequential Pay
Certificates on such immediately preceding Distribution Date
pursuant
to Section
4.01;
(h) any amounts
that were used to reimburse Nonrecoverable
Advances
(including interest on such Nonrecoverable Advances) from
principal
collections on the Mortgage Loans pursuant to
Section
3.05(a) hereof which are subsequently recovered on the related
Mortgage
Loan with respect to the Distribution Date related to the
period in
which such recovery occurs;
(i) any amounts
that were used to reimburse Workout-Delayed
Reimbursement Amounts (including interest on such
Workout-Delayed
Reimbursement Amounts) from principal collections on the Mortgage
Loans
pursuant
to Section 3.05(a) hereof which are subsequently recovered on
the
related Mortgage Loan with respect to the Distribution Date
related
to the
period in which such recovery occurs, less;
(j) the amount
of any reimbursements of (i) Nonrecoverable
Advances
(including interest on such Nonrecoverable Advances) that are
paid or
reimbursed from principal collections on the Mortgage Loans
pursuant
to Section 3.05(a) hereof with respect to such Distribution
Date and
(ii) Workout-Delayed Reimbursement Amounts (including interest
on such
Workout-Delayed Reimbursement Amounts) that are paid or
reimbursed
from principal collections on the Mortgage Loans pursuant to
Section
3.05(a) hereof with respect to such Distribution Date, in each
case where
such principal collections would have otherwise been
included
in the Principal Distribution Amount for such Distribution
Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan or Companion Loan that is received in
advance of
its scheduled Due Date; provided that it shall not include a
payment of
principal that is accompanied by an amount of interest representing
scheduled
interest due on any date or dates in any month or months subsequent
to the
month of prepayment.
"Privileged Person": Any Certificateholder, Certificate Owner,
any Person identified to the Trustee or the Master Servicer, as
applicable,
as a prospective transferee of a Certificate or interest therein,
any Rating
Agency, any Mortgage Loan Seller, any Companion Holders, any party
hereto,
any Underwriter or any designee of the Depositor; provided that
no
Certificate Owner or prospective transferee of a Certificate or
interest
therein shall be considered a "Privileged Person" or be entitled to
a
password or restricted access as contemplated by Section 3.15 or
Section 4.02
unless such Person has delivered to the Trustee or the Master
Servicer, as
applicable, a certification in the form of Exhibit K-1 or Exhibit
K-2, as
applicable which certification is available on the Trustee's
Internet Website.
"Prohibited Party: Any party, in the case of the Master
Servicer, the Special Servicer or the Trustee, that is listed on
the
Depositor's Do Not Hire List.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated February 24, 2006, as
supplemented by the Prospectus Supplement, relating to the
Registered
Certificates.
"Prospectus Supplement": The final prospectus supplement dated
February 24, 2006 of the Depositor relating to the registration of
the
Registered Certificates under the Securities Act.
"PTE 95-60": As defined in Section 5.02(c).
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(e).
"Purchase Price": With respect to any Mortgage Loan or REO Loan
purchased by the Mortgage Loan Seller pursuant to the applicable
Mortgage
Loan Purchase Agreement, by the Majority Subordinate
Certificateholder, the
Companion Holder or the Special Servicer as described in Section
3.18(c),
3.18(d) or 3.18(e), or by the Depositor, the Special Servicer, the
Majority
Subordinate Certificateholder or the Master Servicer pursuant
to
Section 9.01, a cash price equal to the outstanding principal
balance of such
Mortgage Loan or REO Loan, as of the date of purchase, together
with (a) all
accrued and unpaid interest on such Mortgage Loan or REO Loan at
the related
Mortgage Rate to but not including the Due Date in the Collection
Period of
purchase plus any accrued interest on P&I Advances made with
respect to such
Mortgage Loan, (b) all related and unreimbursed Servicing Advances
plus any
accrued and unpaid interest thereon, (c) any reasonable costs and
expenses,
including, but not limited to, the cost of any enforcement action,
incurred
by the Master Servicer, the Special Servicer or the Trust Fund in
connection
with any such purchase by a Mortgage Loan Seller (to the extent not
included
in clause (b) above) and (d) any other Additional Trust Fund
Expenses in
respect of such Mortgage Loan (including any Additional Trust Fund
Expenses
previously reimbursed or paid by the Trust Fund but not so
reimbursed by the
related Mortgagor or other party or from Insurance Proceeds or
condemnation
proceeds or any other collections in respect of the Mortgage Loan
or the
related Mortgaged Property from a source other than the Trust
Fund), or in
the case of any Loan Pair, the purchase price specified in the
related
Intercreditor Agreement; provided that the Purchase Price shall not
be
reduced by any outstanding P&I Advance.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A qualified institutional
buyer
within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer": An insurance company or security or
bonding
company qualified to write the related Insurance Policy in the
relevant
jurisdiction (i) with a minimum insurance financial strength or
claims paying
ability rating of at least "A3" by Moody's, and "A" by S&P (or
the
obligations of which are guaranteed or backed by a company having
such a
claims paying ability), and (ii) with respect to the fidelity bond
and errors
and omissions Insurance Policy required to be maintained pursuant
to
Section 3.07(c), an insurance company that has a claims paying
ability rated
no lower than two rating categories (without regard to pluses or
minuses or
numerical qualifications) below the rating assigned to the then
highest rated
outstanding Certificate, but in no event lower than "A" by S&P
and "A3" by
Moody's (or, if not rated by Moody's, then at least "A" by two
other
nationally recognized statistical rating organizations (which may
include
S&P)), or, in the case of clauses (i) and (ii), such other
rating as each
Rating Agency shall have confirmed in writing will not cause such
Rating
Agency to downgrade, qualify or withdraw the then-current rating
assigned to
any of the Certificates that are then currently being rated by such
Rating
Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which
must, on the date of substitution: (i) have an outstanding Stated
Principal
Balance, after application of all scheduled payments of principal
and
interest due during or prior to the month of substitution, not in
excess of
the Stated Principal Balance of the deleted Mortgage Loan as of the
Due Date
in the calendar month during which the substitution occurs; (ii)
have a
Mortgage Rate not less than the Mortgage Rate of the deleted
Mortgage Loan;
(iii) have the same Due Date as the deleted Mortgage Loan; (iv)
accrue
interest on the same basis as the deleted Mortgage Loan (for
example, on the
basis of a 360-day year consisting of twelve 30-day months); (v)
have a
remaining term to stated maturity not greater than, and not more
than two
years less than, the remaining term to stated maturity of the
deleted
Mortgage Loan; (vi) have an original Loan-to-Value Ratio not higher
than that
of the deleted Mortgage Loan and a current Loan-to-Value Ratio not
higher
than the then current Loan-to-Value Ratio of the deleted Mortgage
Loan;
(vii) comply as of the date of substitution with all of the
representations
and warranties set forth in the applicable Mortgage Loan Purchase
Agreement;
(viii) have an Environmental Assessment that indicates no
adverse
environmental conditions with respect to the related Mortgaged
Property and
which will be delivered as a part of the related Servicing File;
(ix) have an
original Debt Service Coverage Ratio (calculated to include the
additional
debt from any encumbrance) of not less than the original Debt
Service
Coverage Ratio (calculated to include the additional debt from
any
encumbrance) of the deleted Mortgage Loan and a current Debt
Service Coverage
Ratio (calculated to include the additional debt from any
encumbrance) of not
less than the current Debt Service Coverage Ratio (calculated to
include the
additional debt from any encumbrance) of the deleted Mortgage Loan;
(x) be
determined by an Opinion of Counsel (at the applicable Mortgage
Loan Seller's
expense) to be a "qualified replacement mortgage" within the
meaning of
Section 860G(a)(4) of the Code; (xi) not have a maturity date after
the date
two years prior to the Rated Final Distribution Date; (xii) not
be
substituted for a deleted Mortgage Loan unless the Trustee has
received prior
confirmation in writing by each Rating Agency that such
substitution will not
result in the withdrawal, downgrade, or qualification of the rating
assigned
by the Rating Agency to any Class of Certificates then rated by the
Rating
Agency (the cost, if any, of obtaining such confirmation to be paid
by the
Mortgage Loan Seller); (xiii) have a date of origination that is
not more
than 12 months prior to the date of substitution; (xiv) have been
approved by
the Controlling Class Representative (or, if there is no
Controlling Class
Representative then serving, by the Holders of Certificates
representing a
majority of the Voting Rights allocated to the Controlling Class);
(xv) not
be substituted for a deleted Mortgage Loan if it would result in
the
termination of the REMIC status of REMIC I or REMIC II or the
imposition of
tax on either of such REMICs other than a tax on income expressly
permitted
or contemplated to be received by the terms of this Agreement, as
determined
by an Opinion of Counsel (at the applicable Mortgage Loan Seller's
expense);
and (xvi) become a part of the same Loan Group as the deleted
Mortgage Loan.
In the event that one or more mortgage loans are substituted for
one or more
deleted Mortgage Loans, then the amounts described in clause (i)
shall be
determined on the basis of aggregate principal balances and the
rates
described in clause (ii) above and the remaining term to stated
maturity
referred to in clause (v) above shall be determined on a weighted
average
basis; provided that no individual Mortgage Loan shall have a Net
Mortgage
Rate that is less than the highest Pass-Through Rate of any Class
of
Sequential Pay Certificates bearing a fixed rate. When a Qualified
Substitute Mortgage Loan is substituted for a deleted Mortgage
Loan, the
applicable Mortgage Loan Seller shall certify that the Mortgage
Loan meets
all of the requirements of the above definition and shall send
such
certification to the Trustee. No substitutions will be permitted
for the
2005-C22 Serviced Mortgage Loan.
"Rated Final Distribution Date": The Distribution Date in
January 2045, the first Distribution Date after the 24th month
following the
end of the amortization term for the Mortgage Loan that, as of the
Cut-Off
Date, has the longest remaining amortization term (without regard
to the
related Stated Maturity Date).
"Rating Agency": Each of Moody's and S&P.
"Realized Loss": With respect to: (1) each Defaulted Mortgage
Loan as to which a Final Recovery Determination has been made, or
with
respect to any successor REO Loan as to which a Final Recovery
Determination
has been made as to the related REO Property, an amount (not less
than zero)
equal to (a) the unpaid principal balance of such Mortgage Loan or
REO Loan,
as the case may be, as of the commencement of the Collection Period
in which
the Final Recovery Determination was made, plus (b) without taking
into
account the amount described in subclause (1)(d) of this
definition, all
accrued but unpaid interest on such Mortgage Loan or such REO Loan,
as the
case may be, at the related Mortgage Rate to but not including the
Due Date
in the Collection Period in which the Final Recovery Determination
was made
(exclusive of any portion thereof that constitutes default interest
in excess
of the Mortgage Rate, Additional Interest, Prepayment Premiums or
Yield
Maintenance Charges), plus (c) any related unreimbursed Servicing
Advances
and any unreimbursed interest on any Advances as of the
commencement of the
Collection Period in which the Final Recovery Determination was
made,
together with any new related Servicing Advances made during such
Collection
Period, minus (d) all payments and proceeds, if any, received in
respect of
such Mortgage Loan or the REO Property that relates to such REO
Loan, as the
case may be, during the Collection Period in which such Final
Recovery
Determination was made; (2) each defaulted Mortgage Loan as to
which any
portion of the principal or previously accrued interest (other
than
Additional Interest and Penalty Interest) payable thereunder was
canceled in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or a modification, waiver or amendment of such Mortgage
Loan
granted or agreed to by the Special Servicer pursuant to Section
3.20, the
amount of such principal and/or interest so canceled; (3) each
Mortgage Loan
as to which the Mortgage Rate thereon has been permanently reduced
and not
recaptured for any period in connection with a bankruptcy or
similar
proceeding involving the related Mortgagor or a modification,
waiver or
amendment of such Mortgage Loan granted or agreed to by the Special
Servicer
pursuant to Section 3.20, the amount of the consequent reduction in
the
interest portion of each successive Periodic Payment due thereon
(each such
Realized Loss shall be deemed to have been incurred on the Due Date
for each
affected Periodic Payment); and (4) each Mortgage Loan for which a
Final
Recovery Determination has been made, to the extent not included in
clause
(1) above, Nonrecoverable Advances (including interest on such
Nonrecoverable
Advance) to the extent amounts have been paid from the Principal
Distribution
Amount pursuant to Section 3.05(a) hereof.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which
such
Distribution Date occurs.
"Registered Certificate": Any Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A, Class A-M, Class A-J,
Class B,
Class C, Class D, Class E or Class F Certificate.
"Regular Certificate": Any REMIC II Certificate other than a
Class R-II Certificate.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be
amended from
time to time, and subject to such clarification and interpretation
as have
been provided by the Commission in the adopting release
(Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506,
1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be
provided by
the Commission or its staff from time to time.
"Regulation AB Companion Loan Securitization": As defined in
Section 3.29(a).
"Reimbursement Rate": The rate per annum applicable to the
accrual of interest on Servicing Advances in accordance with
Section 3.03(d) and on P&I Advances in accordance with Section
4.03(d), which
rate per annum is equal to the Prime Rate.
"Relevant Servicing Criteria": The Servicing Criteria
applicable
to the various parties, as set forth on Exhibit S attached hereto.
For
clarification purposes, multiple parties can have responsibility
for the same
Relevant Servicing Criteria. With respect to a Servicing
Participant engaged
by the Trustee, the Master Servicer or the Special Servicer, the
term
"Relevant Servicing Criteria" may refer to a portion of the
Relevant
Servicing Criteria for each of the Master Servicer, the Special
Servicer or
the Trustee, as applicable.
"REMIC": A "real estate mortgage investment conduit" as defined
in Section 860D of the Code.
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 8.14.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be
administered
hereunder with respect to which a separate REMIC election is to be
made and,
consisting of: (i) all of the Mortgage Loans as from time to time
are
subject to this Agreement and all payments under and proceeds of
such
Mortgage Loans received after the Closing Date (excluding all
Additional
Interest on such Mortgage Loans), together with all documents
included in the
related Mortgage Files and any related Escrow Payments and Reserve
Funds;
(ii) all amounts held from time to time with respect to a Mortgage
Loan in
the Interest Reserve Account, the Certificate Account, the
Distribution
Account, the Gain-on-Sale Reserve Account and any REO Account;
(iii) any REO
Property acquired in respect of a Mortgage Loan (or the Trust
Fund's
beneficial interest in the Mortgaged Property securing the 2005-C22
Serviced
Mortgage Loan acquired under the 2005-C22 Pooling and Servicing
Agreement);
(iv) the rights of the Depositor under Sections 2, 3, 9, 10, 11,
12, 13, 14,
16, 17, 18 and 19 of each of the Mortgage Loan Purchase Agreements
with
respect to such Mortgage Loans; and (v) the rights of the mortgagee
under all
Insurance Policies with respect to such Mortgage Loans, in each of
the
foregoing clauses exclusive of the interest of the holder of a
Companion Loan
therein.
"REMIC I Pass-Through Rate": As set forth in the Preliminary
Statement.
"REMIC I Principal Balance": The principal balance of any
REMIC I Regular Interest outstanding as of any date of
determination. As
of
the Closing Date, the REMIC I Principal Balance of each REMIC I
Regular
Interest shall equal the original REMIC I Principal Balance as set
forth in
the Preliminary Statement hereto. On each Distribution Date, the
REMIC I
Principal Balance of each REMIC I Regular Interest shall be
permanently
reduced by all distributions of principal deemed to have been made
in respect
of such REMIC I Regular Interest on such Distribution Date pursuant
to
Section 4.01(h), and shall be further permanently reduced on
such
Distribution Date by all Realized Losses and Additional Trust Fund
Expenses
deemed to have been allocated thereto on such Distribution Date
pursuant to
Section 4.04(b) and shall be increased on such Distribution Date
by
Certificate Deferred Interest deemed to have been allocated thereto
on such
Distribution Date pursuant to Section 4.04(c).
"REMIC I Regular Interest": Any of the separate uncertificated
beneficial ownership interests in REMIC I issued hereunder, and
designated as
a "regular interest" in REMIC I, held as an asset of REMIC II and
having the
original REMIC I Principal Balance and REMIC I Pass-Through Rate as
described
in the Preliminary Statement hereto.
"REMIC II": The segregated pool of assets consisting of all of
the REMIC I Regular Interests and all amounts held from time to
time, to the
extent related to REMIC II, in the Distribution Account, conveyed
in trust to
the Trustee for the benefit of REMIC II, as holder of the REMIC I
Regular
Interests, and the Holders of the Class R-II Certificates pursuant
to
Section 2.9, with respect to which a separate REMIC election is to
be made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A, Class A-M, Class A-J,
Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S,
Class X-C,
Class X-P or Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear
at
Sections 860A through 860G of Subchapter M of Chapter 1 of the
Code, and
related provisions, and proposed, temporary and final Treasury
regulations
and any published rulings, notices and announcements promulgated
thereunder,
as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property,
gross income of the character described in Section 856(d) of the
Code.
"REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on
behalf of the
Trustee in trust for the Certificateholders, which shall be
entitled "LNR
Partners, Inc., as Special Servicer, in trust for the registered
holders of
Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through
Certificates, Series 2006-C23."
"REO Acquisition": The acquisition of any REO Property by the
Trust Fund pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of any REO
Property pursuant to Section 3.18(h).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed
to be outstanding for so long as the related REO Property remains
part of
REMIC I and deemed to provide for Periodic Payments of principal
and/or
interest equal to its Assumed Scheduled Payment and otherwise to
have the
same terms and conditions as its predecessor Mortgage Loan (such
terms and
conditions to be applied without regard to the default on such
predecessor
Mortgage Loan and the acquisition of the related REO Property as
part of the
Trust Fund). Each REO
Loan shall be deemed to have an initial unpaid
principal balance and Stated Principal Balance equal to the unpaid
principal
balance and Stated Principal Balance, respectively, of its
predecessor
Mortgage Loan (or, if applicable, Companion Loan) as of the date of
the
related REO Acquisition. All Scheduled Payments (other than
a Balloon
Payment), Assumed Scheduled Payments (in the case of a Balloon
Mortgage Loan
delinquent in respect of its Balloon Payment) and other amounts due
and
owing, or deemed to be due and owing, in respect of the predecessor
Mortgage
Loan as of the date of the related REO Acquisition, shall be deemed
to
continue to be due and owing in respect of an REO Loan.
In addition,
Nonrecoverable Advances and Unliquidated Advances (including
interest on such
Nonrecoverable Advances and Unliquidated Advances) with respect to
such REO
Loan that were paid from collections on the Mortgage Loans and
resulted in
principal distributed to the Certificateholders being reduced
pursuant to
Section 3.05(a) hereof, shall be deemed outstanding until recovered
or until
a Final Recovery Determination is made. Collections in respect of each
REO
Loan (after provision for amounts to be applied to the payment of,
or to be
reimbursed to the Master Servicer, the Special Servicer or the
Trustee for
the payment of, the costs of operating, managing, selling, leasing
and
maintaining the related REO Property or for the reimbursement of
the Master
Servicer, the Special Servicer or the Trustee for Advances as
provided in
this Agreement) shall be treated: first, as a recovery of
Nonrecoverable
Advances and Unliquidated Advances (including interest on such
Nonrecoverable
Advances or Unliquidated Advances) with respect to such REO Loan,
in each
case that relate to Advances that were paid from collections on the
Mortgage
Loans and resulted in principal distributed to the
Certificateholders being
reduced pursuant to Section 3.05(a) hereof; second, as a recovery
of accrued
and unpaid interest on such REO Loan at the related Mortgage Rate
to but not
including the Due Date in the Collection Period of receipt
(exclusive of any
portion thereof that constitutes Additional Interest); third, as a
recovery
of principal of such REO Loan to the extent of its entire unpaid
principal
balance; and fourth, in accordance with the normal servicing
practices of the
Master Servicer, as a recovery of any other amounts due and owing
in respect
of such REO Loan, including, without limitation, (i) Yield
Maintenance
Charges, Prepayment Premiums and Penalty Interest and (ii)
Additional
Interest and other amounts, in that order. Notwithstanding the foregoing,
all amounts payable or reimbursable to the Master Servicer, the
Special
Servicer or the Trustee in respect of the predecessor Mortgage Loan
as of the
date of the related REO Acquisition, including, without limitation,
any
unpaid Servicing Fees and any unreimbursed Servicing Advances and
P&I
Advances, together with any interest accrued and payable to the
Master
Servicer, the Special Servicer or the Trustee in respect of such
Servicing
Advances and P&I Advances in accordance with Sections 3.03(d)
and 4.03(d),
shall continue to be payable or reimbursable to the Master
Servicer, the
Special Servicer or the Trustee, as the case may be, in respect of
an REO
Loan pursuant to Section 3.05(a).
"REO Property": A Mortgaged Property acquired on behalf and in
the name of the Trustee (or, in the case of the 2005-C22 Serviced
Mortgage
Loan, the Trust Fund's proportionate beneficial interest in the
Mortgaged
Property acquired by the 2005-C22 Trustee pursuant to the 2005-C22
Pooling
and Servicing Agreement) for the benefit of the Certificateholders
(subject
to the related Intercreditor Agreement with respect to a Mortgaged
Property
securing a Loan Pair) through foreclosure, acceptance of a
deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in
connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived
from the ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Reportable Event": As defined in Section 8.17(j).
"Reporting Party": The Master Servicer, the Special Servicer,
the Trustee, an Additional Servicer or a Servicing Participant.
"Request for Release": A request signed by a Servicing Officer,
as applicable, of the Master Servicer in the form of Exhibit D-1
attached
hereto or of the Special Servicer in the form of Exhibit D-2
attached hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage Loan, an appraisal of the related Mortgaged Property from
an
Independent Appraiser selected by the Special Servicer.
"Required Appraisal Date": With respect to any Required
Appraisal Mortgage Loan, the earliest date on which any of the
items
specified in clauses (i) through (vi) of the first paragraph of
the
definition of Required Appraisal Mortgage Loan occurs.
"Required Appraisal Mortgage Loan": Each Mortgage Loan (other
than the 2005-C22 Serviced Mortgage Loan) (i) that is sixty (60)
days or more
delinquent in respect of any Periodic Payments, (ii) that becomes
an REO Loan
(other than the 2005-C22 Serviced Mortgage Loan), (iii) that has
been
modified by the Special Servicer to reduce the amount of any
Periodic Payment
(other than a Balloon Payment), (iv) with respect to which a
receiver is
appointed and continues in such capacity in respect of the related
Mortgaged
Property, (v) with respect to which a Mortgagor declares bankruptcy
or with
respect to which the related Mortgagor is subject to a bankruptcy
proceeding,
(vi) with respect to which any Balloon Payment on such Mortgage
Loan (other
than the 2005-C22 Serviced Mortgage Loan) has not been paid by its
scheduled
maturity date, unless the Master Servicer has, on or prior to 60
days
following the Stated Maturity Date, received written evidence from
an
institutional lender of such lender's binding commitment to
refinance such
Mortgage Loan within 120 days after the Due Date of such Balloon
Payment
(provided that if such refinancing does not occur during such time
specified
in the commitment, the related Mortgage Loan (other than the
2005-C22
Serviced Mortgage Loan) will immediately become a Required
Appraisal Mortgage
Loan) or (vii) that is outstanding 60 days after the third
anniversary of an
extension of its Stated Maturity Date; provided, however, that a
Required
Appraisal Mortgage Loan will cease to be a Required Appraisal
Mortgage Loan:
(a) with respect
to the circumstances described in clauses
(i) and
(iii) above, when the related Mortgagor has made three
consecutive full and timely Periodic Payments under the terms of
such
Mortgage
Loan (other than the 2005-C22 Serviced Mortgage Loan) (as such
terms may
be changed or modified in connection with a bankruptcy or
similar
proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the
Special
Servicer
pursuant to Section 3.20); and
(b) with respect
to the circumstances described in clauses
(iv), (v)
and (vi) above, when such circumstances cease to exist in the
good faith
reasonable judgment of the Special Servicer and in
accordance
with the Servicing Standard, but, with respect to any
bankruptcy
or insolvency proceedings described in clauses (iv) and (v),
no later
than the entry of an order or decree dismissing such
proceeding, and with respect to the circumstances described in
clause
(vi)
above, no later than the date that the Special Servicer agrees
to
an
extension pursuant to Section 3.20 hereof;
so long as at that time no circumstance identified in clauses (i)
through
(vi) above exists that would cause the Mortgage Loan (other than
the 2005-C22
Serviced Mortgage Loan) to continue to be characterized as a
Required
Appraisal Mortgage Loan.
"Required Appraisal Value": An amount equal to 90% of the
Appraised Value (net of any prior liens and estimated liquidation
expenses
and any other downward adjustments the Special Servicer may deem
appropriate
(without implying any obligation to do so) based upon its review of
the
Appraisal and such other information as the Special Servicer may
deem
appropriate) of the Mortgaged Property related to the subject
Required
Appraisal Mortgage Loan as determined by a Required Appraisal or
letter
update or internal valuation, if applicable; provided that for
purposes of
determining any Appraisal Reduction Amount in respect of such
Required
Appraisal Mortgage Loan, such Appraisal Reduction Amount shall be
amended
annually to reflect the Required Appraisal Value determined
pursuant to any
Required Appraisal or letter update or internal valuation, if
applicable, of
a Required Appraisal conducted subsequent to the original Required
Appraisal
performed pursuant to Section 3.09(a).
"Reserve Account": The account or accounts created and
maintained pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan (other than
the 2005-C22 Serviced Mortgage Loan), any amounts delivered by the
related
Mortgagor to be held in escrow by or on behalf of the mortgagee
representing
reserves for environmental remediation, repairs, capital
improvements, tenant
improvements and/or leasing commissions with respect to the related
Mortgaged
Property.
"Residual Certificate": A Class R-I Certificate or Class R-II
Certificate.
"Responsible Officer": When used with respect to (i) the
initial
Trustee, any officer or assistant officer in the Corporate Trust
Office of
the initial Trustee, and (ii) any successor trustee, any officer or
assistant
officer in the corporate trust department of the successor trustee,
or any
other officer or assistant officer of the successor trustee
customarily
performing functions similar to those performed by any of the
above
designated officers to whom a particular matter is referred by the
successor
trustee because of such officer's knowledge of and familiarity with
the
particular subject.
"Restricted Servicer Reports": Each of the CMSA Servicer
Watchlist, CMSA Operating Statement Analysis, CMSA NOI Adjustment
Worksheet
and CMSA Comparative Financial Status Report. If a Restricted Servicer
Report is filed with the Commission, it shall thereafter be an
Unrestricted
Servicer Report.
"S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc., or its successor in interest.
If neither such
Rating Agency nor any successor remains in existence, "S&P"
shall be deemed
to refer to such other nationally recognized statistical rating
agency or
other comparable Person designated by the Depositor, notice of
which
designation shall be given to the Trustee, the Master Servicer and
the
Special Servicer, and specific ratings of S&P herein referenced
shall be
deemed to refer to the equivalent ratings of the party so
designated.
"Sarbanes-Oxley Act": The Sarbanes-Oxley Act of 2002 and the
rules and regulations of the Commission promulgated thereunder
(including any
interpretations thereof by the Commission's staff).
"Sarbanes-Oxley Certification": A written certification signed
by an officer of the Master Servicer that complies with (i) the
Sarbanes-Oxley Act of 2002, as amended from time to time, including
all
necessary Regulation AB certification requirements, and (ii)
Exchange Act
Rules 13a-14(d) and 15d-14(d), as in effect from time to time.
"Scheduled Payment": With respect to any Mortgage Loan, for any
Due Date following the Cut-Off Date as of which it is outstanding,
the
scheduled Periodic Payment of principal and interest (other than
Additional
Interest) on such Mortgage Loan that is or would be, as the case
may be,
payable by the related Mortgagor on such Due Date under the terms
of the
related Mortgage Note as in effect on the Closing Date, without
regard to any
subsequent change in or modification of such terms in connection
with a
bankruptcy or similar proceeding involving the related Mortgagor or
a
modification, waiver or amendment of such Mortgage Loan granted or
agreed to
by the Special Servicer pursuant to Section 3.20 or acceleration of
principal
by reason of default, and assuming that each prior Scheduled
Payment has been
made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A or Class X
Certificate.
"Sequential Pay Certificates": Any Class A-1, Class A-2, Class
A-3, Class A-PB, Class A-4, Class A-5, Class A-1A, Class A-M, Class
A-J,
Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class Q or
Class S
Certificate.
"Servicer Fee Amount": With respect to each Sub-Servicer and
any
date of determination, the aggregate of the products obtained by
multiplying,
for each Mortgage Loan serviced by such Sub-Servicer, (a) the
Stated
Principal Balance of such Mortgage Loan as of the end of the
immediately
preceding Collection Period and (b) the servicing fee rate
specified in the
related Sub-Servicing Agreement for such Mortgage Loan.
With respect to
the
Master Servicer and any date of determination, the aggregate of the
products
obtained by multiplying, for each Mortgage Loan (a) the Stated
Principal
Balance of such Mortgage Loan as of the end of the immediately
preceding
Collection Period and (b) the difference between the Master
Servicing Fee
Rate for such Mortgage Loan over the servicing fee rate (if any)
applicable
to such Mortgage Loan as specified in any Sub-Servicing Agreement
related to
such Mortgage Loan.
"Servicer Reports": Any of the Restricted Servicer Reports, the
Unrestricted Servicer Reports, the CMSA Loan Setup File, the CMSA
Loan
Periodic Update File, the CMSA Financial File, CMSA Property File,
the CMSA
Advance Recovery Report and a report reconciling Penalty Interest
and late
payment charges collected with interest on Advances and Additional
Trust Fund
Expenses.
"Servicing Account": The account or accounts created and
maintained pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out of pocket" costs and expenses incurred by or on behalf of the
Master
Servicer, the Special Servicer or the Trustee in connection with
the
servicing of a Mortgage Loan or a Companion Loan (other than the
2005-C22
Serviced Mortgage Loan and its related Companion Loan), or in
connection with
the administration of any related REO Property, including, but not
limited
to, the cost of (a) compliance with the obligations of the Master
Servicer
and the Special Servicer, if any, set forth in Section 3.02 and
Section 3.03(c), (b) the preservation, insurance, restoration,
protection and
management of a Mortgaged Property, including the cost of any
"forced placed"
insurance policy purchased by the Master Servicer to the extent
such cost is
allocable to a particular Mortgaged Property that the Master
Servicer or the
Special Servicer is required to cause to be insured pursuant to
Section 3.07(a), (c) obtaining any Insurance Proceeds or any
Liquidation
Proceeds of the nature described in clauses (i) through (v) of the
definition
of "Liquidation Proceeds," (d) any enforcement or judicial
proceedings with
respect to a Mortgaged Property, including, without limitation,
foreclosures,
(e) any Required Appraisal or other appraisal expressly required or
permitted
to be obtained hereunder, (f) the operation, management,
maintenance and
liquidation of any such REO Property, including, without
limitation,
appraisals and compliance with Section 3.16(a) (to the extent not
covered by
available funds in the REO Account) and Section 3.20(h) (to the
extent not
paid by the related Mortgagor) and (g) compliance with the
obligations of the
Master Servicer or the Trustee set forth in Section 2.03(a) or
(b).
Notwithstanding anything to the contrary, "Servicing Advances"
shall not
include allocable overhead of the Master Servicer or the Special
Servicer,
such as costs for office space, office equipment, supplies and
related
expenses, employee salaries and related expenses and similar
internal costs
and expenses or costs and expenses incurred by any such party in
connection
with its purchase of a Mortgage Loan or REO Property, or costs or
expenses
expressly required to be borne by the Master Servicer or Special
Servicer
without reimbursement pursuant to the terms of this Agreement.
"Servicing Criteria": The "servicing criteria" set forth in
Item
1122(d) of Regulation AB.
"Servicing Fees": With respect to each Mortgage Loan, Companion
Loan and REO Loan, the Master Servicing Fee and the Special
Servicing Fee.
"Servicing File": Any documents, certificates, opinions and
reports (other than documents required to be part of the related
Mortgage
File) delivered by the related Mortgagor in connection with, or
relating to
the origination and servicing of any Mortgage Loan or Companion
Loan which
are reasonably required for the ongoing administration of the
Mortgage Loan
and the Companion Loan, including management agreements, cash
management
agreements, lockbox agreements, franchise agreements, franchise
comfort
letters (and evidence of required notification of transfer),
appraisals,
surveys, engineering reports, environmental reports, operation
and
maintenance (O&M) plans, financial statements, leases, rent
rolls and tenant
estoppels.
"Servicing Officer": Any officer or employee of the Master
Servicer, the Special Servicer or any Additional Servicer involved
in, or
responsible for, the administration and servicing of the Mortgage
Loans,
whose name and specimen signature appear on a list of servicing
officers
furnished by such party to the Trustee and the Depositor on the
Closing Date,
as such list may be amended from time to time.
"Servicing Participant": Any Additional Servicer, Sub-Servicer,
Subcontractor or any other Person, other than the Master Servicer,
the
Special Servicer and the Trustee, that is performing activities
addressed by
the Servicing Criteria, unless such Person's activities relate only
to 5% or
less of the Mortgage Loans.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standard": With respect to the Master Servicer or
the
Special Servicer, as applicable, the servicing and administration
of the
Mortgage Loans and the Companion Loans for which it is responsible
hereunder
(a) in the same manner in which, and with the same care, skill,
prudence and
diligence with which the Master Servicer or the Special Servicer,
as the case
may be, generally services and administers similar mortgage loans
with
similar borrowers (i) for other third-parties, giving due
consideration to
customary and usual standards of practice of prudent institutional
commercial
mortgage lenders servicing their own loans or (ii) held in its own
portfolio,
whichever standard is higher, (b) with a view to the maximization
of the
recovery on such Mortgage Loan on a net present value basis and the
best
interests of the Certificateholders and the Trust Fund or, if a
Loan Pair is
involved, with a view towards the maximization of recovery on such
Co-Lender
Loan Pair to the Certificateholders, the related Companion Holders
and the
Trust Fund (as a collective whole, taking into account that the
Subordinate
Companion Loans are subordinate to the related Co-Lender Loans and
the Pari
Passu Companion Loans are pari passu in right of payment with the
related
Pari Passu Loan, in each case to the extent set forth in the
related
Intercreditor Agreement), and (c) without regard to (i) any
relationship that
the Master Servicer or the Special Servicer, as the case may be, or
any
Affiliate thereof may have with the related Mortgagor, the
Depositor, any
Mortgage Loan Seller or any other party to the transaction or any
Affiliate
thereof; (ii) the ownership of any Certificate or Companion Loan
(or other
interest in any Mortgage Loan or Companion Loan) by the Master
Servicer or
the Special Servicer, as the case may be, or by any Affiliate
thereof;
(iii) the right of the Master Servicer or the Special Servicer, as
the case
may be, to receive compensation or other fees for its services
rendered
pursuant to this Agreement; (iv) the obligations of the Master
Servicer to
make Advances; (v) the ownership, servicing or management by the
Master
Servicer or the Special Servicer, as the case may be, or any
Affiliate
thereof for others of any other mortgage loans or mortgaged
property;
(vi) any obligation of the Master Servicer or any Affiliate of the
Master
Servicer to repurchase or substitute a Mortgage Loan as a Mortgage
Loan
Seller; (vii) any obligation of the Master Servicer or any
Affiliate of the
Master Servicer to cure a breach of a representation and warranty
with
respect to a Mortgage Loan; and (viii) any debt the Master Servicer
or
Special Servicer or any Affiliate of either has extended to any
Mortgagor or
any Affiliate of such Mortgagor.
"Servicing Transfer Event": With respect to any Mortgage Loan
(other than the 2005-C22 Serviced Mortgage Loan), the occurrence of
any of
the events described in clauses (a) through (h) of the definition
of
"Specially Serviced Mortgage Loan".
"Similar Law": As defined in Section 5.02(c).
"Single Certificate": For purposes of Section 4.02, a
hypothetical Certificate of any Class of Regular Certificates
evidencing a
$1,000 denomination.
"Special Reserve Account": As used herein, the Trustee may
create a segregated custodial account or accounts pursuant to
Section 2.02(d) in trust for the Certificateholders, which shall be
entitled
"Wells Fargo Bank, N.A., as Trustee, in trust for the registered
holders of
Wachovia Bank Commercial Mortgage Trust, Commercial Mortgage
Pass-Through
Certificates, Series 2006-C23 and [name of party providing the
funds]". Any
such account will be an Eligible Account.
"Special Servicer": With respect to each Mortgage Loan (other
than the 2005-C22 Serviced Mortgage Loan), LNR Partners, Inc., or,
any
successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially
Serviced
Mortgage Loan and each REO Loan, the fee designated as such and
payable to
the Special Servicer pursuant to the first paragraph of Section
3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan or
Companion Loan (other than the 2005-C22 Serviced Mortgage Loan and
the Hyatt
Center Pari Passu Companion Loan) as to which any of the following
events
have occurred:
(a) the related
Mortgagor shall have (i) failed to make within
60 days of the date when due any Balloon Payment; provided,
however, that if
the Mortgagor continues to make its Assumed Scheduled Payment and
diligently
pursues refinancing, a Servicing Transfer Event shall not occur
until 60 days
following such default (or, if the Mortgagor has produced a
written
refinancing commitment that is reasonably acceptable to the Special
Servicer
and the Controlling Class Representative has given its consent
(which consent
shall be deemed denied if not granted within 10 Business Days), 120
days
following such default; provided that if such refinancing does not
occur
during the time period specified in such written refinancing
commitment, a
Servicing Transfer Event will be deemed to occur); or (ii) failed
to make
when due any Periodic Payment (other than a Balloon Payment), and
such
failure has continued unremedied for 60 days; or
(b) the Master
Servicer or Special Servicer (in the case of the
Special Servicer, with the consent of the Controlling Class
Representative)
shall have determined (with written notice of any such
determination by the
Special Servicer to be promptly given by the Special Servicer to
the Master
Servicer), in its good faith reasonable judgment, and in accordance
with the
Servicing Standard, based on communications with the related
Mortgagor, that
a default in making a Periodic Payment (including a Balloon
Payment) or any
other default under the applicable Mortgage Loan documents that
would (with
respect to such other default) materially impair the value of the
Mortgaged
Property as security for the Mortgage Loan and, if applicable,
Companion Loan
or otherwise would materially adversely affect the interests of
Certificateholders and would continue unremedied beyond the
applicable grace
period under the terms of the Mortgage Loan (or, if no grace period
is
specified, for 60 days; provided that a default that would give
rise to an
acceleration right without any grace period shall be deemed to have
a grace
period equal to zero) is likely to occur and is likely to remain
unremedied
for at least 60 days; or
(c) there shall
have occurred a default (other than as
described in clause (a) above) that the Master Servicer or the
Special
Servicer (in the case of the Special Servicer, with the consent of
the
Controlling Class Representative) shall have determined (with
written notice
of any such determination by the Special Servicer to be promptly
given by the
Special Servicer to the Master Servicer), in its good faith and
reasonable
judgment, and in accordance with the Servicing Standard, materially
impairs
the value of the Mortgaged Property as security for the Mortgage
Loan and, if
applicable, Companion Loan, or otherwise materially adversely
affects the
interests of Certificateholders and that continues unremedied
beyond the
applicable grace period under the terms of the Mortgage Loan (or,
if no grace
period is specified, for 60 days; provided that a default that
gives rise to
an acceleration right without any grace period shall be deemed to
have a
grace period equal to zero); provided, however, that, in the event
the
Special Servicer with the consent of the Controlling Class
Representative
determines that the related Mortgagor does not need to maintain
terrorism
insurance as provided in Section 3.07(a), no default related to the
failure
to obtain such insurance shall be deemed to be outstanding for
purposes of
this clause(c); or
(d) a decree or
order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary
case under
any present or future federal or state bankruptcy, insolvency or
similar law
or the appointment of a conservator or receiver or liquidator in
any
insolvency, readjustment of debt, marshaling of assets and
liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs,
shall have been entered against the related Mortgagor; provided
that, if such
decree or order is discharged, dismissed or stayed within 60 days
it shall
not be a Specially Serviced Mortgage Loan (and no Special Servicing
Fees
shall be payable); or
(e) the related
Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of
debt, marshaling of assets and liabilities or similar proceedings
of or
relating to such Mortgagor or of or relating to all or
substantially all of
its property; or
(f) the related
Mortgagor shall admit in writing its inability
to pay its debts generally as they become due, file a petition to
take
advantage of any applicable insolvency, bankruptcy or
reorganization statute,
make an assignment for the benefit of its creditors, or voluntarily
suspend
payment of its obligations; or
(g) the Master
Servicer shall have force placed insurance
against damages or losses arising from acts of terrorism due to the
failure
of the related borrower to maintain or cause such insurance to be
maintained
and (1) subsequent to such force placement such borrower fails to
maintain or
cause to be maintained insurance coverage against damages for
losses arising
from acts of terrorism for a period of 60 days (or such shorter
time period
as the Controlling Class Representative may consent to) or (2) the
Master
Servicer fails to have been reimbursed from any Servicing Advances
made in
connection with the force placement of such insurance coverage
(unless the
circumstances giving rise to such forced placement of such
insurance coverage
have otherwise been cured and the Master Servicer has been
reimbursed for any
Servicing Advances made in connection with the forced placement of
such
insurance coverage); or
(h) the Master
Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to
the
related
Mortgaged Property;
provided, however, that a Companion Loan shall be deemed to be a
Specially
Serviced Mortgage Loan if the related Co-Lender Loan becomes a
Specially
Serviced Mortgage Loan and a Co-Lender Loan shall be deemed to be a
Specially
Serviced Mortgage Loan if the related Companion Loan becomes a
Specially
Serviced Mortgage Loan; provided, further, however that a Mortgage
Loan or
Companion Loan will cease to be a Specially Serviced Mortgage
Loan:
(i) with
respect to the circumstances described in
clause (a) above, when the related Mortgagor has made three
consecutive full and timely Periodic Payments under the terms
of
such Mortgage Loan or Companion Loan (as such terms may be
changed
or modified in connection with a bankruptcy or similar
proceeding
involving the related Mortgagor or by reason of a modification,
waiver or amendment granted or agreed to by the Special
Servicer
pursuant to Section 3.20);
(ii)
with respect to the circumstances described in
clauses (b), (d), (e) and (f) above, when such circumstances
cease to exist in the good faith reasonable judgment of the
Special Servicer and in accordance with the Servicing Standard,
but, with respect to any bankruptcy or insolvency proceedings
described in clauses (d), (e) and (f), no later than the entry
of
an order or decree dismissing such proceeding;
(iii) with
respect to the circumstances described in
clause (c) and (g) above, when such default is cured; and
(iv)
with respect to the circumstances described in
clause (h) above, when such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a)
through
(h) above exists that would cause the Mortgage Loan (or, with
respect to a
Co-Lender Loan, the related Companion Loan, or, with respect to a
Companion
Loan, the related Co-Lender Loan) to continue to be characterized
as a
Specially Serviced Mortgage Loan; provided no additional default
is
foreseeable in the reasonable good faith judgment of the Special
Servicer.
"SSA-Austin, TX Companion Loan": That certain mortgage loan
evidenced by a note, which is not an asset of the Trust Fund,
secured by the
Mortgaged Property securing the SSA-Austin, TX Loan.
"SSA-Austin, TX Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated as of August 16, 2005, by and between
Wachovia
Bank, National Association, as A-Note Holder and Caplease, LP, as
B-Note
Holder relating to the SSA-Austin, TX Loan Pair.
"SSA-Austin, TX Loan": That certain Mortgage Loan which is
included in the Trust Fund (identified as loan number 168 on the
Mortgage
Loan Schedule).
"SSA-Austin, TX Loan Pair": The SSA-Austin, TX Loan, together
with the SSA-Austin, TX Companion Loan.
"Startup Day": With respect to each of REMIC I and REMIC II,
the
day designated as such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the States of New
York, Minnesota and North Carolina and by any other state or local
taxing
authorities; provided that such states and such other state and
local taxing
authorities, by notice to the Trustee, assert jurisdiction over the
trust
fund or any portion thereof, or which, according to an Opinion of
Counsel
addressed to the Trustee, have such jurisdiction.
"Stated Maturity Date": With respect to any Mortgage Loan, the
Due Date specified in the Mortgage Note (as in effect on the
Closing Date) on
which the last payment of principal is due and payable under the
terms of the
Mortgage Note (as in effect on the Closing Date), without regard to
any
change in or modification of such terms in connection with a
bankruptcy or
similar proceeding involving the related Mortgagor or a
modification, waiver
or amendment of such Mortgage Loan granted or agreed to by the
Special
Servicer pursuant to Section 3.20 and, in the case of an ARD Loan,
without
regard to its Anticipated Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan,
as of any date of determination, an amount (which amount shall not
be less
than zero) equal to (x) the Cut-Off Date Balance of such Mortgage
Loan (or,
in the case of a Qualified Substitute Mortgage Loan, the unpaid
principal
balance after application of all principal payments due on or
before the
related date of substitution, whether or not received), plus (y)
any Mortgage
Deferred Interest added to the principal balance of such Mortgage
Loan on or
before the end of the immediately preceding Collection Period minus
(z) the
sum of:
(i) the
principal portion of each Periodic Payment due
on such Mortgage Loan after the Cut-Off Date or the related date
of
substitution, as the case may be, to the extent received from
the
Mortgagor or advanced by the 2005-C22 Master Servicer, the
Master
Servicer or the Trustee and distributed to Certificateholders on
or
before such date of determination;
(ii)
all Principal Prepayments received with respect
to such Mortgage Loan after the Cut-Off Date or the related
date
of substitution, as the case may be, to the extent distributed
to
Certificateholders on or before such date of determination;
(iii) the
principal portion of all Insurance Proceeds
and Liquidation Proceeds received with respect to such Mortgage
Loan after the Cut-Off Date or the related date of
substitution,
as the case may be, to the extent distributed to
Certificateholders on or before such date of determination;
(iv)
the principal portion of any Realized Loss
incurred in respect of such Mortgage Loan during the related
Collection Period; and
(v) any amount
of reduction in the outstanding
principal balance of such Mortgage Loan resulting from a
Deficient
Valuation that occurred prior to the end of the Collection
Period
for the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination,
an
amount equal to (x) the Stated Principal Balance of the predecessor
Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the
sum of:
(A) the
principal portion of any P&I Advance made
with respect to the predecessor Mortgage Loan on or after
the date of the related REO Acquisition, to the extent
distributed to Certificateholders on or before such date of
determination; and
(B) the
principal portion of all Insurance
Proceeds, Liquidation Proceeds and REO Revenues received
with respect to such REO Loan, to the extent distributed to
Certificateholders on or before such date of determination.
A Mortgage Loan or an REO Loan shall be deemed to be part of
the
Trust Fund and to have an outstanding Stated Principal Balance
until the
Distribution Date on which the payments or other proceeds, if any,
received
in connection with a Liquidation Event in respect thereof are to be
(or, if
no such payments or other proceeds are received in connection with
such
Liquidation Event, would have been) distributed to
Certificateholders.
In
addition, to the extent that principal from general collections is
used to
reimburse Nonrecoverable Advances pursuant to Sections 3.05(a)(vii)
and
(viii) or Workout Delayed Reimbursement Amounts pursuant to
Sections
3.05(a)(vii) and (viii) (which are only reimbursable from
principal
collections on the Mortgage Pool as set forth in this Agreement)
and such
amount has not been included as part of the Principal Distribution
Amount,
such amount shall nevertheless be deemed to be part of the
Principal
Distribution Amount for purposes of clauses (i), (ii) and (iii)
above.
Notwithstanding the foregoing, if any Mortgage Loan is paid in
full,
liquidated or otherwise removed from the Trust Fund, commencing as
of the
first Distribution Date following the Collection Period during
which such
event occurred, the Stated Principal Balance of such Mortgage Loan
will be
zero.
With respect to any Companion Loan on any date of
determination,
the Stated Principal Balance shall equal the unpaid principal
balance of such
Companion Loan.
"Subcontractor": Any third-party or affiliated vendor,
subcontractor or other Person utilized by a Servicer, a
Sub-Servicer, the
Trustee or the Custodian, as applicable, that is not responsible
for the
overall servicing (as "servicing" is commonly understood by
participants in
the commercial mortgage-backed securities market) of Mortgage Loans
but
performs one or more discrete functions identified in Item 1122(d)
of
Regulation AB with respect to Mortgage Loans.
"Subordinate Companion Holder": The holders of any of the
Subordinate Companion Loans.
"Subordinate Companion Loan": Each of the 620 Avenue of the
Americas Companion Loan, the Hohokam Towers Companion Loan, the
DEA/ATF
Building Companion Loan and the SSA-Austin, TX Companion Loan,
individually
or collectively, as the context may require.
"Subordinated Certificate": Any Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K,
Class L, Class M, Class N, Class O, Class P, Class Q, Class S,
Class Z,
Class R-I or Class R-II Certificate.
"Sub-Servicer": Any Person with which the Master Servicer, the
Special Servicer or an Additional Servicer has entered into a
Sub-Servicing
Agreement for the performance (whether directly or through
Sub-Servicers or
Subcontractors) of a substantial portion of the material servicing
functions
required to be performed by the Master Servicer or the Special
Servicer under
this Agreement or by an Additional Servicer under a servicing
agreement, with
respect to some or all of the Mortgage Loans, that are identified
in Item
1122(d) of Regulation AB.
"Sub-Servicing Agreement": The written contract between the
Master Servicer or the Special Servicer, on the one hand, and
any
Sub-Servicer, on the other hand, relating to servicing and
administration of
Mortgage Loans as provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(a) hereof, an amount equal to the excess,
if any, of
the Purchase Price of the Mortgage Loan being replaced calculated
as of the
date of substitution over the Stated Principal Balance of the
related
Qualified Substitute Mortgage Loan as of the date of substitution.
In the
event that one or more Qualified Substitute Mortgage Loans are
substituted
(at the same time) for one or more deleted Mortgage Loans, the
Substitution
Shortfall Amount shall be determined as provided in the preceding
sentence on
the basis of the aggregate Purchase Prices of the Mortgage Loan or
Mortgage
Loans being replaced and the aggregate Stated Principal Balances of
the
related Qualified Substitute Mortgage Loan or Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Tax Matters Person": With respect to each of REMIC I and
REMIC II, the Person designated as the "tax matters person" of such
REMIC in
the manner provided under Treasury Regulations Section 1.860F-4(d)
and
Temporary Treasury Regulations Section 301.6231(a)(7)-1T, which
Person shall
be the applicable Plurality Residual Certificateholder.
"Tax Returns": The federal income tax returns on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment
Conduit
(REMIC) Income Tax Return, including Schedule Q thereto, Quarterly
Notice to
Residual Interest Holders of REMIC Taxable Income or Net Loss
Allocation, or
any successor forms, to be filed on behalf of REMIC I and REMIC II
due to its
classification as a REMIC under the REMIC Provisions, and the
federal income
tax return to be filed on behalf of the Additional Interest Grantor
Trust due
to its classification as a grantor trust under the Grantor Trust
Provisions,
together with any and all other information, reports or returns
that may be
required to be furnished to the Certificateholders or filed with
the Internal
Revenue Service under any applicable provisions of federal tax law
or any
other governmental taxing authority under applicable State and
Local Tax laws.
"Time of Sale": As defined in that certain Underwriting
Agreement, dated as of February 24, 2006, among Wachovia Commercial
Mortgage
Securities, Inc., Wachovia Bank, National Association, Wachovia
Capital
Markets, LLC, Nomura
Securities International, Inc., Banc of America
Securities LLC, Deutsche Bank Securities Inc., Goldman, Sachs &
Co. and J.P.
Morgan Securities Inc.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership Interest in a Certificate.
"Trust-Related Litigation": As defined in Section 2.03(h).
"Trust Fund": Collectively, (i) all of the assets of each of
REMIC I and REMIC II and (ii) the Additional Interest Grantor Trust
Assets.
"Trustee": Wells Fargo Bank, N.A., its successor in interest,
or
any successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and REO Loan
for any Distribution Date, an amount equal to one month's interest
for the
most recently ended calendar month (calculated on a 30/360 Basis),
accrued at
the Trustee Fee Rate on the Stated Principal Balance of such
Mortgage Loan or
REO Loan, as the case may be, outstanding immediately following the
prior
Distribution Date (or, in the case of the initial Distribution
Date, as of
the Closing Date).
"Trustee Fee Rate": 0.0005% per annum.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and
filed pursuant to the Uniform Commercial Code, as in effect in any
relevant
jurisdiction.
"Underwriter": Each of Wachovia Capital Markets, LLC, Nomura
Securities International, Inc., Banc of America Securities LLC,
Deutsche Bank
Securities Inc., Goldman, Sachs & Co. and J.P. Morgan
Securities Inc. or, in
each case, its successor in interest.
"United States Person": A citizen or resident of the United
States, a corporation or partnership (including an entity treated
as a
corporation or partnership for federal income tax purposes) created
or
organized in, or under the laws of, the United States, any State
thereof or
the District of Columbia unless in the case of a partnership,
Treasury
Regulations are adopted that provide otherwise, an estate whose
income is
includable in gross income for United States federal income tax
purposes
regardless of its source or a trust if a court within the United
States is
able to exercise primary supervision over the administration of the
trust,
and one or more United States Persons have the authority to control
all
substantial decisions of the trust, all within the meaning of
Section 7701(a)(30) of the Code (or, to the extent provided in
applicable
Treasury regulations, certain trusts in existence on August 20,
1996, that
are eligible to elect to be treated as United States Persons).
"Unliquidated Advance": Any Advance previously made by a party
hereto that has been previously reimbursed, as between the Person
that made
the Advance hereunder, on the one hand, and the Trust Fund, on the
other, as
part of a Workout-Delayed Reimbursement Amount pursuant to
subsections
(ii) and (vi) of Section 3.05(a) but that has not been recovered
from the
Mortgagor or otherwise from collections on or the proceeds of the
Mortgage
Loan or REO Property in which the Trust Fund holds a beneficial
interest in
respect of which the Advance was made.
"Unrestricted Servicer Reports": Each of the CMSA Delinquent
Loan Status Report, CMSA Historical Loan Modification and Corrected
Mortgage
Loan Report, CMSA Loan Level Reserve/LOC Report, CMSA Historical
Liquidation
Report, CMSA REO Status Report and the CMSA Advance Recovery
Report.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the
term of this Agreement, 100% of the Voting Rights shall be
allocated among
the Holders of the Regular Certificates. Ninety-six percent (96%) of
the
Voting Rights shall be allocated among the Class A-1, Class A-2,
Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A, Class A-M, Class A-J,
Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K,
Class L, Class M, Class N, Class O, Class P, Class Q and Class S
Certificates
in proportion to the respective Class Principal Balances of
their
Certificates (which proportion shall be calculated as equal to the
product of
96% and a fraction, the numerator of which is equal to the
aggregate
Certificate Balance of the related Class of Certificates (adjusted
as
provided in the immediately succeeding provisos) and the
denominator of which
is equal to the aggregate Certificate Balances of all Classes of
Certificates
referenced above, determined as of the Distribution Date
immediately
preceding such time); provided that, solely for the purpose of
determining
the Voting Rights of the Classes of Sequential Pay Certificates,
the
aggregate Appraisal Reduction Amount (determined as set forth
herein) shall
be treated as Realized Losses with respect to the calculation of
the
Certificate Principal Balances thereof; provided, further, however,
that the
aggregate Appraisal Reduction Amount shall not reduce the Class
Principal
Balance of any Class for purposes of determining the Controlling
Class, the
Controlling Class Representative or the Majority Subordinate
Certificateholder.
Four percent (4%) in the aggregate of the Voting Rights
shall be allocated to the Class X Certificates (allocated, pro
rata, between
the Class X-C and Class X-P Certificates based upon their Notional
Amounts).
The Class Z Certificates and the Residual Certificates shall have
no voting
rights. Voting Rights
allocated to a Class of Certificateholders shall be
allocated among such Certificateholders in standard proportion to
the
Percentage Interests evidenced by their respective Certificates.
In
addition, if either the Master Servicer or the Special Servicer is
the holder
of any Certificate, neither of the Master Servicer or Special
Servicer, in
its capacity as a Certificateholder, shall have Voting Rights with
respect to
matters concerning compensation affecting the Master Servicer or
the Special
Servicer.
"Wachovia": Wachovia Bank, National Association or its
successor
in interest.
"Wachovia Mortgage Loan Purchase Agreement": That certain
mortgage loan purchase agreement, dated as of March 1, 2006 between
the
Depositor and Wachovia and relating to the transfer of the Wachovia
Mortgage
Loans to the Depositor.
"Wachovia Mortgage Loans": Each of the Mortgage Loans
transferred and assigned to the Depositor pursuant to the Wachovia
Mortgage
Loan Purchase Agreement.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted
average,
expressed as a percentage and rounded to six decimal places, of
the
respective Net Mortgage Rates applicable to the Mortgage Loans as
of the
first day of the related Collection Period, weighted on the basis
of their
respective Stated Principal Balances immediately following the
preceding
Distribution Date.
"Workout-Delayed Reimbursement Amounts": With respect to any
Mortgage Loan, the amount of any Advance made with respect to such
Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for
the making
of three Monthly Payments under its modified terms, would then
constitute) a
Corrected Mortgage Loan (or, with respect to the 2005-C22 Serviced
Mortgage
Loan, a "corrected mortgage loan" under the 2005-C22 Pooling and
Servicing
Agreement), together with (to the extent accrued and unpaid)
interest on such
Advances, to the extent that (i) such Advance (and any interest
thereon) is
not reimbursed to the Person who made such Advance on or before the
date, if
any, on which such Mortgage Loan becomes a Corrected Mortgage Loan
(or, with
respect to the 2005-C22 Serviced Mortgage Loan, a "corrected
mortgage loan"
under the 2005-C22 Pooling and Servicing Agreement) and (ii) the
amount of
such Advance (and any interest thereon) becomes an obligation of
the
Mortgagor to pay such amount over a period of time rather than
immediately or
on the next Due Date under the terms of the modified loan
documents.
"Workout Fee": With respect to each Corrected Mortgage Loan,
the
fee designated as such and payable to the Special Servicer pursuant
to the
second paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage
Loan, 1.0%.
"Yield Maintenance Charge": Payments paid or payable, as the
context requires, on a Mortgage Loan as the result of a Principal
Prepayment
thereon, not otherwise due thereon in respect of principal or
interest, which
have been calculated (based on Scheduled Payments on such Mortgage
Loan) to
compensate the holder for reinvestment losses based on the value of
an
interest rate index at or near the time of prepayment. Any other prepayment
premiums, penalties and fees not so calculated will not be
considered "Yield
Maintenance Charges."
In the event that a Yield Maintenance Charge shall
become due for any particular Mortgage Loan, the Master Servicer
shall be
required to follow the terms and provisions contained in the
applicable
Mortgage Note; provided, however, in the event the particular
Mortgage Note
shall not specify the U.S. Treasuries which shall be used in
determining the
discount rate or the reinvestment yield to be applied in such
calculation,
the Master Servicer shall be required to use those U.S. Treasuries
having
maturity dates most closely approximating the maturity of such
Mortgage
Loan. Accordingly if
either no U.S. Treasury issue, or more than one U.S.
Treasury issue, shall coincide with the term over which the Yield
Maintenance
Charge shall be calculated (which depending on the applicable
Mortgage Note
is based on the remaining average life of the Mortgage Loan or the
actual
term remaining through the Maturity Date), the Master Servicer
shall use the
U.S. Treasury whose reinvestment yield is the lowest, with such
yield being
based on the bid price for such issue as published in The Wall
Street Journal
on the date that is 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 = (12X
{(1+"BEY"/2)^1/6}-1) where
BEY is defined as the U.S. Treasury Reinvestment Yield which is in
decimal
form and not in percentage, and 1/6 is the exponential power to
which a
portion of the equation is raised. For example, using a BEY of 5.50%,
the
MEY = (12 X {(1+ .055/2)^0.16667}-1) where 0.055 is the decimal
version of
the percentage 5.5% and 0.16667 is the decimal version of the
exponential
power. The MEY in the
above calculation is 5.44%.
ARTICLE II
CONVEYANCE OF MORTGAGE
LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance
of Mortgage Loans.
(a) The
Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer, set over and otherwise
convey to
the Trustee, in trust, without recourse, for the benefit of the
Certificateholders (and for the benefit of the other parties to
this
Agreement as their respective interests may appear) all the right,
title and
interest of the Depositor, in, to and under (i) the Mortgage Loans
and all
documents included in the related Mortgage Files and Servicing
Files,
(ii) the rights of the Depositor under Sections 2, 3, 9, 10, 11,
12, 13, 14,
16, 17, 18 and 19 of each of the Mortgage Loan Purchase Agreements,
and
(iii) all other assets included or to be included in the Trust
Fund. Such
assignment includes all interest and principal received or
receivable on or
with respect to the Mortgage Loans and due after the Cut-Off Date.
The
transfer of the Mortgage Loans and the related rights and
property
accomplished hereby is absolute and, notwithstanding Section 11.07,
is
intended by the parties to constitute a sale.
(b) In
connection with the Depositor's assignment pursuant to
Section 2.01(a) above the Depositor shall direct, and hereby
represents and
warrants that it has directed, each Mortgage Loan Seller pursuant
to the
applicable Mortgage Loan Purchase Agreement, to deliver to and
deposit with,
or cause to be delivered to and deposited with, the Trustee or a
Custodian
appointed thereby (with a copy to the Master Servicer and Special
Servicer),
on or before the Closing Date, the Mortgage File for each Mortgage
Loan so
assigned and the Servicing File to the Master Servicer.
The Special
Servicer
may request the Master Servicer to deliver a copy of the Servicing
File for
any Mortgage Loan (other than a Specially Serviced Mortgage Loan,
which will
not be at the expense of the Special Servicer) at the expense of
the Special
Servicer. None of the
Trustee, any Custodian, the Master Servicer or the
Special Servicer shall be liable for any failure by any Mortgage
Loan Seller
or the Depositor to comply with the document delivery requirements
of the
applicable Mortgage Loan Purchase Agreement and this Section
2.01(b).
(c) If any
Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Mortgage Loan, any of the
documents
and/or instruments referred to in clauses (ii), (iii), (vi) (if
recorded) and
(viii) of the definition of "Mortgage File" (or, with respect to
the 2005-C22
Serviced Mortgage Loan, a photocopy thereof), with evidence of
recording
thereon, solely because of a delay caused by the public recording
office
where such document or instrument has been delivered for
recordation, the
delivery requirements of the related Mortgage Loan Purchase
Agreement and
Section 2.01(b) shall be deemed to have been satisfied as to
such
non-delivered document or instrument, and such non-delivered
document or
instrument shall be deemed to have been included in the Mortgage
File;
provided that a photocopy of such non-delivered document or
instrument
(certified by the applicable Mortgage Loan Seller to be a true and
complete
copy of the original thereof submitted for recording) is delivered
to the
Trustee or a Custodian appointed thereby on or before the Closing
Date, and
either the original of such non-delivered document or instrument,
or a
photocopy thereof, with evidence of recording thereon, is delivered
to the
Trustee or such Custodian within 120 days of the Closing Date (or
within such
longer period after the Closing Date as the Trustee may consent to,
which
consent shall not be unreasonably withheld so long as the
applicable Mortgage
Loan Seller is, in good faith, attempting to obtain from the
appropriate
county recorder's office such original or photocopy). If the applicable
Mortgage Loan Seller cannot deliver, or cause to be delivered, as
to any
Mortgage Loan, any of the documents and/or instruments referred to
in clauses
(ii), (iii), (vi) (if recorded) and (viii) of the definition of
"Mortgage
File" (or, with respect to the 2005-C22 Serviced Mortgage Loan, a
photocopy
thereof), with evidence of recording thereon, for any other
reason,
including, without limitation, that such non-delivered document or
instrument
has been lost, the delivery requirements of the applicable Mortgage
Loan
Purchase Agreement and Section 2.01(b) shall be deemed to have been
satisfied
as to such non-delivered document or instrument and such
non-delivered
document or instrument shall be deemed to have been included in the
Mortgage
File; provided that a photocopy of such non-delivered document or
instrument
(with evidence of recording thereon) is delivered to the Trustee or
a
Custodian appointed thereby on or before the Closing Date.
If, on the Closing Date as to any Mortgage Loan, the applicable
Mortgage Loan Seller does not deliver in complete and recordable
form any one
of the assignments in favor of the Trustee referred to in clause
(iv) or
(v) of the definition of "Mortgage File" (or, with respect to the
2005-C22
Serviced Mortgage Loan, a photocopy thereof), the applicable
Mortgage Loan
Seller may provisionally satisfy the delivery requirements of the
related
Mortgage Loan Purchase Agreement and Section 2.01(b) by delivering
with
respect to such Mortgage Loan on the Closing Date an omnibus
assignment of
such Mortgage Loan; provided that all required original assignments
with
respect to such Mortgage Loan in fully complete and recordable form
shall be
delivered to the Trustee or its Custodian within 120 days of the
Closing Date
(or within such longer period as the Trustee in its discretion may
permit).
(d) The Trustee
shall, for a fee paid to the Trustee by the
Depositor on the Closing Date as to each Mortgage Loan, promptly
(and in any
event within 90 days following the latest of (i) the Closing Date,
(ii) the
delivery of all assignments and UCC Financing Statements to the
Trustee and
(iii) the date on which the Trustee receives, with respect to the
original
recorded or filed documents relating to such assignments and UCC
Financing
Statements, all necessary recording and filing information required
for the
recording or filing of such assignments and UCC Financing
Statements) cause
to be submitted for recording or filing, as the case may be, in
the
appropriate public office for real property records or UCC
Financing
Statements, as appropriate and to the extent timely delivered to
the Trustee
in final, recordable form, each assignment of Mortgage, assignment
of
Assignment of Leases and any other recordable documents (to the
extent the
Trustee has actual knowledge that such documents are to be
recorded) relating
to each such Mortgage Loan, in favor of the Trustee referred to in
clause
(iv)(a), (b) and (c), respectively, of the definition of "Mortgage
File" and
each UCC-2 and UCC-3 assignment in favor of the Trustee and so
delivered to
the Trustee and referred to in clause (viii) of the definition of
"Mortgage
File." The applicable
Mortgage Loan Seller shall reimburse the Trustee for
all reasonable costs and expenses incurred for recording any
documents
described in clause (iv)(c) of the definition of "Mortgage File."
Each such
assignment, UCC-2 and UCC-3 shall reflect that the recorded
original should
be returned by the public recording office to the Trustee or its
designee
following recording, and each such UCC-2 and UCC-3 assignment shall
reflect
that the file copy thereof should be returned to the Trustee or its
designee
following filing; provided that in those instances where the public
recording
office retains the original assignment of Mortgage or assignment
of
Assignment of Leases, the Trustee shall obtain therefrom a
certified copy of
the recorded original, at the expense of the Depositor.
If any such
document
or instrument is lost or returned unrecorded or unfiled, as the
case may be,
because of a defect therein, the Trustee shall direct the related
Mortgage
Loan Seller pursuant to the applicable Mortgage Loan Purchase
Agreement to
promptly prepare or cause to be prepared a substitute therefor or
cure such
defect, as the case may be, and thereafter the Trustee shall upon
receipt
thereof cause the same to be duly recorded or filed, as
appropriate. Upon
request, the Trustee shall forward to the Master Servicer a copy of
each of
the aforementioned recorded assignments following the Trustee's
receipt
thereof, to the extent not previously provided.
(e) All
documents and records in the Servicing File in
possession of the Depositor or the Mortgage Loan Sellers (except
attorney
client privileged communications, draft documents and any documents
or
materials prepared by the Mortgage Loan Sellers or their Affiliates
for
internal uses, including, without limitation, internal
correspondence and
credit analysis of the Mortgage Loan Sellers) that relate to the
Mortgage
Loans and that are not required to be a part of a Mortgage File in
accordance
with the definition thereof (including any original letters of
credit),
together with all Escrow Payments and Reserve Accounts in the
possession
thereof, shall be delivered to the Master Servicer or such other
Person as
may be directed by the Master Servicer (at the expense of the
applicable
Mortgage Loan Seller) on or before the Closing Date and shall be
held by the
Master Servicer on behalf of the Trustee in trust for the benefit
of the
Certificateholders; provided, however, the Master Servicer shall
have no
responsibility for holding documents created or maintained by the
Special
Servicer hereunder and not delivered to the Master Servicer.
(f) In
connection with the Depositor's assignment pursuant to
Section 2.01(a) above
