CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
Depositor
[INSERT NAME OF INITIAL MASTER SERVICER]
Master Servicer
[INSERT NAME OF INITIAL SPECIAL SERVICER]
Special Servicer
[INSERT NAME OF INITIAL TRUSTEE]
Trustee
and
[INSERT NAME OF INITIAL FISCAL AGENT]
Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of _____________________, 200_
$______________________
[Insert name of issuing trust]
Commercial Mortgage Pass-Through Certificates
Series 200_-___
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01.
Defined Terms...........................................
7
SECTION 1.02.
General Interpretive Principles.........................
86
SECTION 1.03.
Calculation of LIBOR....................................
87
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01.
Conveyance of Mortgage Loans............................
88
SECTION 2.02.
Acceptance of the Trust Fund by Trustee.................
91
SECTION 2.03.
Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of
Representations and Warranties.......................
93
SECTION 2.04.
Representations and Warranties of Depositor.............
96
SECTION 2.05.
Conveyance of Mortgage Loans, Loan REMIC Regular
Interests and REMIC I Regular Interests; Acceptance
of Loan REMIC, REMIC I, REMIC II and Grantor Trusts
by Trustee...........................................
98
SECTION 2.06.
Issuance of Loan REMIC Interests and REMIC I Interests..
98
SECTION 2.07.
Execution, Authentication and Delivery of REMIC II
Certificates.........................................
99
SECTION 2.08.
Execution, Authentication and Delivery of Class Y and
Class A-2FL Certificates.............................
99
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01.
Administration of the Serviced Loans....................
100
SECTION 3.02.
Collection of Mortgage Loan Payments....................
101
SECTION 3.03.
Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.................
104
SECTION 3.04.
Certificate Account, Interest Reserve Account,
Gain-on-Sale Reserve Account, Additional Interest
Account, Floating Rate Account, Distribution Account
and A/B Custodial Accounts...........................
109
SECTION 3.05.
Permitted Withdrawals from the Certificate Account,
Interest Reserve Account, Additional Interest
Account, Floating Rate Account, Distribution Account
and A/B Custodial Accounts...........................
115
SECTION 3.06.
Investment of Funds in the Servicing Accounts, Reserve
Accounts, Certificate Account, Interest Reserve
Account, Distribution Account, Floating Rate Account,
A/B Custodial Accounts, Gain-on-Sale Reserve Account,
Additional Interest Account, and REO Accounts........
127
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SECTION 3.07.
Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage................................
129
SECTION 3.08.
Enforcement of Alienation Clauses
133
SECTION 3.09.
Realization Upon Defaulted Mortgage Loans; Required
Appraisals...........................................
136
SECTION 3.10.
Trustee and Custodian to Cooperate; Release of Mortgage
Files................................................
140
SECTION 3.11.
Servicing Compensation..................................
141
SECTION 3.12.
Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports..............
147
SECTION 3.13.
Annual Statement as to Compliance.......................
150
SECTION 3.14.
Reports on Assessment of Compliance with Servicing
Criteria; Registered Public Accounting Firm
Attestation Reports..................................
151
SECTION 3.15.
Access to Certain Information...........................
153
SECTION 3.16.
Title to REO Property; REO Accounts.....................
156
SECTION 3.17.
Management of REO Property..............................
158
SECTION 3.18.
Resolution of Defaulted Mortgage Loans and REO
Properties...........................................
160
SECTION 3.19.
Additional Obligations of Master Servicer and Special
Servicer.............................................
165
SECTION 3.20.
Modifications, Waivers, Amendments and Consents.........
167
SECTION 3.21.
Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.....................
175
SECTION 3.22.
Sub-Servicing Agreements................................
178
SECTION 3.23.
Representations and Warranties of Master Servicer and
Special Servicer.....................................
180
SECTION 3.24.
Sub-Servicing Agreement Representation and Warranty.....
183
SECTION 3.25.
Designation of Controlling Class Representative and
Class [XXX] Representative...........................
184
SECTION 3.26.
Servicing of and Certain Matters Regarding an A/B Loan
Combination..........................................
187
SECTION 3.27.
The Swap Agreement......................................
189
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01.
Distributions...........................................
192
SECTION 4.02.
Statements to Certificateholders........................
210
SECTION 4.03.
P&I Advances............................................
216
SECTION 4.04.
Allocation of Realized Losses and Additional Trust Fund
Expenses; Allocation of Mortgage Deferred Interest;
Allocation of Appraisal Reduction Amounts; and
Allocation of Prepayment Interest Shortfalls.........
221
SECTION 4.05.
Calculations............................................
225
ARTICLE V
THE CERTIFICATES
SECTION 5.01.
The Certificates........................................
226
SECTION 5.02.
Registration of Transfer and Exchange of Certificates...
226
SECTION 5.03.
Book-Entry Certificates.................................
234
SECTION 5.04.
Mutilated, Destroyed, Lost or Stolen Certificates.......
235
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SECTION 5.05.
Persons Deemed Owners...................................
236
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.............................................
237
SECTION 6.02.
Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer..................
237
SECTION 6.03.
Limitation on Liability of Depositor, Master Servicer
and Special Servicer.................................
237
SECTION 6.04.
Resignation of Master Servicer and the Special
Servicer.............................................
239
SECTION 6.05.
Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer....................
239
SECTION 6.06.
Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee...............................
240
SECTION 6.07.
Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.................................
240
SECTION 6.08.
Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer................................
240
SECTION 6.09.
Designation of Special Servicer by the Controlling
Class Certificateholders and Others..................
240
SECTION 6.10.
Master Servicer or Special Servicer as Owner of a
Certificate..........................................
245
SECTION 6.11.
The Controlling Class Representative....................
246
SECTION 6.12.
Certain Matters Regarding the [DEF] Loan Combination....
249
SECTION 6.13.
Certain Matters Regarding the [GHI] Loan Combination....
252
SECTION 6.14.
Certain Matters Relating to the [ABC] Mortgage Loan.....
256
ARTICLE VII
DEFAULT
SECTION 7.01.
Events of Default and Outside Servicer Defaults.........
260
SECTION 7.02.
Trustee to Act; Appointment of Successor................
264
SECTION 7.03.
Notification to Certificateholders and Others...........
265
SECTION 7.04.
Waiver of Events of Default.............................
265
SECTION 7.05.
Additional Remedies of Trustee Upon Event of Default or
Outside Servicer Default.............................
266
ARTICLE VIII
THE TRUSTEE AND THE FISCAL AGENT
SECTION 8.01.
Duties of Trustee.......................................
267
SECTION 8.02.
Certain Matters Affecting Trustee.......................
268
SECTION 8.03.
Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans........
269
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SECTION 8.04.
Trustee and Fiscal Agent May Own Certificates...........
270
SECTION 8.05.
Fees and Expenses of Trustee; Indemnification of
Trustee..............................................
270
SECTION 8.06.
Eligibility Requirements for Trustee....................
271
SECTION 8.07.
Resignation and Removal of Trustee......................
271
SECTION 8.08.
Successor Trustee.......................................
273
SECTION 8.09.
Merger or Consolidation of Trustee and Fiscal Agent.....
273
SECTION 8.10.
Appointment of Co-Trustee or Separate Trustee...........
274
SECTION 8.11.
Appointment of Custodians...............................
275
SECTION 8.12.
Appointment of Authenticating Agents....................
275
SECTION 8.13.
Access to Certain Information...........................
276
SECTION 8.14.
Appointment of Tax Administrators.......................
277
SECTION 8.15.
Representations, Warranties and Covenants of Trustee....
277
SECTION 8.16.
Reports to the Commission...............................
279
SECTION 8.17.
The Fiscal Agent........................................
284
SECTION 8.18.
Representations and Warranties of Fiscal Agent..........
285
ARTICLE IX
TERMINATION
SECTION 9.01.
Termination Upon Repurchase or Liquidation of All
Mortgage Loans.......................................
288
SECTION 9.02.
Additional Termination Requirements.....................
290
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01.
REMIC Administration....................................
292
SECTION 10.02.
Grantor Trust Administration............................
295
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01.
Amendment...............................................
298
SECTION 11.02.
Recordation of Agreement; Counterparts..................
300
SECTION 11.03.
Limitation on Rights of Certificateholders..............
300
SECTION 11.04.
Governing Law...........................................
301
SECTION 11.05.
Notices.................................................
301
SECTION 11.06.
Severability of Provisions..............................
302
SECTION 11.07.
Grant of a Security Interest............................
302
SECTION 11.08.
Streit Act..............................................
302
SECTION 11.09.
Successors and Assigns; Beneficiaries...................
302
SECTION 11.10.
Article and Section Headings............................
303
SECTION 11.11.
Notices to Rating Agencies..............................
303
SECTION 11.12.
Complete Agreement......................................
304
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SCHEDULES AND EXHIBITS
Schedule No.
Schedule Description
------------
--------------------
Schedule I
Mortgage Loan Schedule
Schedule II
Schedule of Exceptions to Mortgage File Delivery
Schedule III
Mortgage Loans as to Which the Related Mortgaged Property is
Covered by a Secured Creditor Environmental Insurance Policy
Schedule IV
[RESERVED]
Schedule V
Class A-SB Planned Principal Balance
Exhibit No.
Exhibit Description
------------
-------------------
A-1
Form of Class A-1, A-1D, A-2FX, A-2FL, A-3, A-SB, A-4 and A-1A
Certificates
A-2
Form of Class X Certificates
A-3
Form of Class A-M, A-J, B, C, D and E Certificates
A-4
Form of Class F, G, H, J and [XXX] Certificates
A-5
Form of Class K, L, M, N, O, P and Q Certificates
A-6
Form of Class R Certificate
A-7
Form of Class Y Certificates
B
[RESERVED]
C
Form of Custodial Certification
D-1
Form of Master Servicer Request for Release
D-2
Form of Special Servicer Request for Release
E
Calculation of Net Cash Flow
F
Form of Distribution Date Statement
G-1
Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
G-2
Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
G-3
Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
G-4
Form of Transferee Certificate for Transfers of Interests in Rule
144A Global Certificates
G-5
Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
H-1
Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
H-2
Form II of Transferee Certificate in Connection with ERISA
(Book-Entry Non-Registered Certificates)
I-1
Form of Transfer Affidavit and Agreement regarding Class R
Certificates
I-2
Form of Transferor Certificate regarding Class R Certificates
J-1
Form of Notice and Acknowledgment
J-2
Form of Acknowledgment of Proposed Special Servicer
K
[RESERVED]
L-1
Form of Information Request/Investor Certification for Website
Access from Certificate [Holder] [Owner]
-v-
L-2
Form of Information Request/Investor Certification for Website
Access from Prospective Investor
M
Form of Purchase Option Notice
N
Form of Defeasance Certification
O
Form of Sarbanes-Oxley Certification
P
Form of Trustee Certification
Q-1
Form of Master Servicer Certification
Q-2
Form of Special Servicer Certification
R
Form of Outside Master Servicer Notice
-vi-
This Pooling and Servicing Agreement (this "Agreement") is dated
and
effective as of _____________________, 200_, among CITIGROUP
COMMERCIAL MORTGAGE
SECURITIES INC., as Depositor, [INSERT NAME OF INITIAL MASTER
SERVICER], as
Master Servicer, [INSERT NAME OF INITIAL SPECIAL SERVICER], as
Special Servicer,
[INSERT NAME OF INITIAL TRUSTEE], as Trustee, and [INSERT NAME OF
INITIAL FISCAL
AGENT], as Fiscal Agent.
PRELIMINARY STATEMENT
The Depositor intends to sell the Certificates, which are to be
issued
hereunder in multiple Classes and which in the aggregate will
evidence the
entire beneficial ownership interest in the Trust Fund.
As provided herein, the Trustee will elect to treat the [ABC]
Mortgage
Loan as the primary asset of a separate REMIC for federal income
tax purposes,
and such REMIC will be designated as the "Loan REMIC". The Class R
Certificates
will represent, among other things, the sole class of "residual
interests" in
the Loan REMIC for purposes of the REMIC Provisions under federal
income tax
law. Two separate Loan REMIC Regular Interests, constituting
beneficial
ownership interests in the Loan REMIC, will be issued on the
Closing Date, and
such Loan REMIC Regular Interests shall be designated as "Loan
REMIC Regular
Interest [XXX]-I" and "Loan REMIC Regular Interest [XXX]-II",
respectively. Each
Loan REMIC Regular Interest will relate to the [ABC] Mortgage Loan
and any
successor REO Mortgage Loan with respect thereto. Each Loan REMIC
Regular
Interest will (i) accrue interest at the related per annum rate
described in the
definition of "Loan REMIC Remittance Rate" and (ii) have an initial
Loan REMIC
Principal Balance equal to: (A) $_______________ in the case of
Loan REMIC
Regular Interest [XXX]-I; and (B) $_________ in the case of Loan
REMIC Regular
Interest [XXX]-II. None of the Loan REMIC Regular Interests will be
certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans (other than the
[ABC] Mortgage
Loan and exclusive of (i) the related Excess Servicing Strips and
(ii) any
collections of Additional Interest on any such Mortgage Loans that
constitute
ARD Mortgage Loans after their respective Anticipated Repayment
Dates), the Loan
REMIC Regular Interests and certain other related assets subject to
this
Agreement as a REMIC for federal income tax purposes, and such
segregated pool
of assets will be designated as "REMIC I". The Class R Certificates
will
represent, among other things, the sole class of "residual
interests" in REMIC I
for purposes of the REMIC Provisions under federal income tax law.
The following
table sets forth the designation, the REMIC I Remittance Rate and
the initial
REMIC I Principal Balance for each of the REMIC I Regular
Interests. None of the
REMIC I Regular Interests will be certificated.
REMIC I
Initial REMIC I
Designation
Remittance Rate
Principal Balance
-----------
---------------
-----------------
[A-1
Variable (1)
$_________
A-1D
Variable (1)
$_________
A-2FL
Variable (1)
$_________
A-2FX
Variable (1)
$_________
A-3
Variable (1)
$_________
A-SB
Variable (1)
$_________
A-4
Variable (1)
$_________
A-1A
Variable (1)
$_________
A-M
Variable (1)
$_________
A-J
Variable (1)
$_________
B
Variable (1)
$_________
C
Variable (1)
$_________
D
Variable (1)
$_________
E
Variable (1)
$_________
F
Variable (1)
$_________
G
Variable (1)
$_________
H
Variable (1)
$_________
J
Variable (1)
$_________
K
Variable (1)
$_________
L
Variable (1)
$_________
M
Variable (1)
$_________
N
Variable (1)
$_________
O
Variable (1)
$_________
P
Variable (1)
$_________
Q
Variable (1)
$_________
[XXX]]
Variable (2)
$_________
----------
(1)
The REMIC I Remittance Rate in effect for any REMIC I Regular
Interest
(other than REMIC I Regular Interest [XXX]) for any Distribution
Date shall
equal the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date.
(2)
The REMIC I Remittance Rate in effect for REMIC I Regular Interest
[XXX]
for any Distribution Date shall equal the Net Mortgage Pass-Through
Rate
for the [ABC] Mortgage Loan (or any successor REO Mortgage Loan
with
respect thereto) for such Distribution Date.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting 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 Certificates will represent,
among other
things, the sole class of "residual interests" in REMIC II for
purposes of the
REMIC Provisions under federal income tax law. The following table
irrevocably
sets forth the Class designation, Pass-Through Rate and original
Class Principal
Balance for each Class of the Regular Certificates and the Class
A-2FL REMIC II
Regular Interest. For federal income tax purposes, each Class of
the Regular
Certificates (exclusive of the Class X Certificates), each Class X
Component and
the Class A-2FL REMIC II Regular Interest will be designated as a
separate
"regular interest" in REMIC II.
-2-
Class
Original Class
Designation
Pass-Through Rate
Principal Balance
-----------
-----------------
-----------------
Class A-1
___% per annum
$_________
Class A-1D
___% per annum
$_________
Class A-2FL(3)
Variable (1)
$_________
Class A-2FX
Variable (1)
$_________
Class A-3
Variable (1)
$_________
Class A-SB
Variable (1)
$_________
Class A-4
Variable (1)
$_________
Class A-1A
Variable (1)
$_________
Class A-M
Variable (1)
$_________
Class A-J
Variable (1)
$_________
Class B
Variable (1)
$_________
Class C
Variable (1)
$_________
Class D
Variable (1)
$_________
Class E
Variable (1)
$_________
Class F
Variable (1)
$_________
Class G
Variable (1)
$_________
Class H
Variable (1)
$_________
Class J
Variable (1)
$_________
Class K
Variable (1)
$_________
Class L
Variable (1)
$_________
Class M
Variable (1)
$_________
Class N
Variable (1)
$_________
Class O
Variable (1)
$_________
Class P
Variable (1)
$_________
Class Q
Variable (1)
$_________
Class X
Variable (1)
(2)
Class [XXX]
Variable (1)
$_________
----------
(1)
Calculated in accordance with the definition of "Pass-Through
Rate".
(2)
The Class X Certificates will not have a Class Principal Balance
and will
not entitle Holders thereof to receive distributions of principal.
The
Class X Certificates will have a Class Notional Amount that will
equal the
aggregate of the Component Notional Amounts of the Class X
Components from
time to time. As more specifically provided herein, interest in
respect of
the Class X Certificates will consist of the aggregate amount of
interest
accrued on the respective Component Notional Amounts of the Class X
Components from time to time.
(3)
Refers to the Class A-2FL REMIC II Regular Interest and not the
Class A-2FL
Certificates.
The portion of the Trust Fund consisting of (i) the Class A-2FL
REMIC
I Regular Interest, the Swap Agreement (and payments by the Swap
Counterparty
thereunder) and the Floating Rate Account and (ii) amounts held
from time to
time in the Floating Rate Account that represent distributions on
the Class
A-2FL REMIC I Regular Interest and payments by the Swap
Counterparty
-3-
under the Swap Agreement, shall be treated as a grantor trust for
federal income
tax purposes and shall be designated as "Grantor Trust A-2FL". As
provided
herein, the Trustee shall take all actions required hereunder to
ensure that the
portion of the Trust Fund consisting of the Grantor Trust A-2FL
Assets maintains
its status as a grantor trust under federal income tax law and not
be treated as
part of any REMIC Pool. The Class A-2FL Certificates shall
represent undivided
beneficial interests in Grantor Trust A-2FL as described herein.
The portion of the Trust Fund and consisting of (i) the Additional
Interest and the Additional Interest Account and (ii) amounts held
from time to
time in the Additional Interest Account that represent Additional
Interest,
shall be treated as a grantor trust for federal income tax purposes
and shall be
designated as "Grantor Trust Y". As provided herein, the Trustee
shall take all
actions required hereunder to ensure that the portion of the Trust
Fund
consisting of the Grantor Trust Y Assets maintains its status as a
grantor trust
under federal income tax law and not be treated as part of any
REMIC Pool. The
Class Y Certificates shall represent undivided beneficial interests
in Grantor
Trust Y as described herein.
There exists one (1) Mortgage Loan (the "[DEF] Mortgage Loan") that
is
evidenced by a Mortgage Note designated as Note A and is, together
with [two
(2)] other mortgage loans that will not be part of the Trust Fund
(each such
other mortgage loan, a "[DEF] B-Note Loan"), secured on a
collective basis by
the same Mortgage encumbering the property identified on the
Mortgage Loan
Schedule as [DEF] (the "[DEF] Mortgaged Property"). The [DEF]
Mortgage Loan has
an unpaid principal balance as of the Cut-off Date of $_________.
One of the
[DEF] B-Note Loans has an unpaid principal balance as of the
Cut-off Date of
$_________ and is evidenced by a promissory note designated as Note
B-1. The
other [DEF] B-Note Loan has an unpaid principal balance as of the
Cut-off Date
of $____________ and is evidenced by a promissory note designated
as Note B-2.
The [DEF] Mortgage Loan and the [DEF] B-Note Loans collectively
constitute the
"[DEF] Loan Combination" (which term shall include any group of
successor REO
Loans with respect to those [three (3)] mortgage loans). The
relative rights of
the respective lenders in respect of the [DEF] Loan Combination are
set forth in
a co-lender agreement dated as of __________________ (as amended,
restated,
supplemented or otherwise modified from time to time, the "[DEF]
Co-Lender
Agreement"), between the holder of the Mortgage Note for the [DEF]
Mortgage Loan
and the holders of the promissory notes for the [DEF] B-Note Loans.
The entire
[DEF] Loan Combination is to be serviced and administered in
accordance with
this Agreement.
There exists one (1) Mortgage Loan (the "[GHI] Mortgage Loan") that
is
evidenced by a Mortgage Note designated as Note A and is, together
with [two
(2)] other mortgage loans that will not be part of the Trust Fund
(each such
other mortgage loan, a "[GHI] B-Note Loan"), secured on a
collective basis by
the same Mortgage encumbering the property identified on the
Mortgage Loan
Schedule as [GHI] (the "[GHI] Mortgaged Property"). The [GHI]
Mortgage Loan has
an unpaid principal balance as of the Cut-off Date of
$____________. One of the
[GHI] B-Note Loans has an unpaid principal balance as of the
Cut-off Date of
$_________ and is evidenced by a promissory note designated as Note
B-1. The
other [GHI] B-Note Loan has an unpaid principal balance as of the
Cut-off Date
of $_________ and is evidenced by a promissory note designated as
Note B-2. The
[GHI] Mortgage Loan and the [GHI] B-Note Loans collectively
constitute the
"[GHI] Loan Combination" (which term shall include any group of
successor REO
Loans with respect to those [three (3)] mortgage loans). The
relative rights of
the respective lenders in respect of the [GHI] Loan Combination are
set forth in
a co-lender agreement dated as of _______________ (as amended,
restated,
supplemented or
-4-
otherwise modified from time to time, the "[GHI] Co-Lender
Agreement"), between
the holder of the Mortgage Note for the [GHI] Mortgage Loan and the
holders of
the promissory notes for the [GHI] B-Note Loans. The entire [GHI]
Loan
Combination is to be serviced and administered in accordance with
this
Agreement.
There exists one (1) Mortgage Loan (the "[JKL] Mortgage Loan") that
is
evidenced by a Mortgage Note designated as Note A and is, together
with [one
(1)] other mortgage loan that will not be part of the Trust Fund
(such other
mortgage loan, the "[JKL] B-Note Loan"), secured on a collective
basis by the
same Mortgage encumbering the property identified on the Mortgage
Loan Schedule
as [JKL] (the "[JKL] Mortgaged Property"). The [JKL] Mortgage Loan
has an unpaid
principal balance as of the Cut-off Date of $_________. The [JKL]
B-Note Loan
has an unpaid principal balance as of the Cut-off Date of
$_________ and is
evidenced by a promissory note designated as Note B. The [JKL]
Mortgage Loan and
the [JKL] B-Note Loan collectively constitute the "[JKL] Loan
Combination"
(which term shall include any group of successor REO Loans with
respect to those
[two (2)] mortgage loans). The relative rights of the respective
lenders in
respect of the [JKL] Loan Combination are set forth in an
intercreditor
agreement dated as of _______________ (as amended, restated,
supplemented or
otherwise modified from time to time, the "[JKL] Intercreditor
Agreement"),
between the holder of the Mortgage Note for the [JKL] Mortgage Loan
and the
holder of the promissory note for the [JKL] B-Note Loan. The entire
[JKL] Loan
Combination is to be serviced and administered in accordance with
this
Agreement.
There exists one (1) Mortgage Loan (the "[MNO] Mortgage Loan") that
is
evidenced by a Mortgage Note designated as Note A and is, together
with [six
(6)] other mortgage loans that will not be part of the Trust Fund
(each such
other mortgage loan, a "[MNO] Non-Trust Loan"), secured on a
collective basis by
the same Mortgage encumbering the portfolio of properties
identified on the
Mortgage Loan Schedule as [MNO] (collectively, the "[MNO] Mortgaged
Properties"). The [MNO] Mortgage Loan has an unpaid principal
balance as of the
Cut-off Date of $____________. The [MNO] Non-Trust Loans consists
of: (i) [four
(4)] mortgage loans (the "[MNO] Pari Passu Non-Trust Loans") with
an aggregate
principal balance as of the Cut-off Date of $____________, which
[four (4)]
mortgage loans are generally pari passu in right of payment with
the [MNO]
Mortgage Loan; and (ii) [two (2)] mortgage loans (the "[MNO]
Subordinate
Non-Trust Loans") with an aggregate principal balance as of the
Cut-off Date of
$____________, which [two (2)] mortgage loans are generally
subordinate in right
of payment to the [MNO] Mortgage Loan and the [MNO] Pari Passu
Non-Trust Loans.
The [MNO] Mortgage Loan and the [MNO] Non-Trust Loans collectively
constitute
the "[MNO] Loan Combination" (which term shall include any group of
successor
REO Loans or comparable deemed mortgage loans with respect to those
[seven (7)]
mortgage loans). The relative rights of the respective lenders in
respect of the
[MNO] Loan Combination are set forth in a co-lender agreement dated
as of
_______________ (as amended, restated, supplemented or otherwise
modified from
time to time, the "[MNO] Co-Lender Agreement"), between the holder
of the
Mortgage Note for the [MNO] Mortgage Loan and the holders of the
promissory
notes for the [MNO] Non-Trust Loans. The entire [MNO] Loan
Combination is to be
serviced and administered in accordance with a pooling and
servicing agreement
dated as of _______________ (as amended, restated, supplemented or
otherwise
modified from time to time, the "Outside Servicing Agreement"),
between
____________________ as depositor, _______________________ as
master servicer,
_______________________ as special servicer, _____________________
as trustee
and paying agent and _______________ as fiscal agent.
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Capitalized terms used but not otherwise defined in this
Preliminary
Statement have the respective meanings assigned thereto in Section
1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal
Agent agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context
otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of
a
360-day year consisting of twelve 30-day months.
"A-Note Mortgage Loan": Any Mortgage Loan as to which the related
Mortgage, which encumbers the related Mortgaged Property, also
secures one or
more B-Note Loans, which B-Note Loan(s) will not be included in the
Trust Fund,
but does not secure any Non-Trust Loan that is pari passu in right
of payment
with such Mortgage Loan. The [DEF] Mortgage Loan, the [GHI]
Mortgage Loan and
the [JKL] Mortgage Loan are the only A-Note Mortgage Loans.
"A/B Controlling Party": With respect to the [DEF] Loan
Combination,
the [DEF] Controlling Party; with respect to the [GHI] Loan
Combination, the
[GHI] Controlling Party; and with respect to the [JKL] Loan
Combination, the
Controlling Class Representative.
"A/B Custodial Account": With respect to any A/B Loan Combination,
the
separate account (which may be a sub-account of the Certificate
Account) created
and maintained by the Master Servicer pursuant to Section 3.04(h)
and held on
behalf of the Certificateholders and the related B-Noteholder(s),
which shall be
entitled substantially as follows: "[NAME OF MASTER SERVICER], as
Master
Servicer for [NAME OF TRUSTEE], as Trustee, on behalf of and in
trust for the
registered holders of [Insert name of issuing trust], Commercial
Mortgage
Pass-Through Certificates, Series 200_-___, and [NAME(S) OF THE
RELATED
B-NOTEHOLDER(S)], as their interests may appear". Each A/B
Custodial Account
shall be an Eligible Account or a sub-account of an Eligible
Account.
"A/B Intercreditor Agreement": With respect to any A/B Loan
Combination, the intercreditor, co-lender or similar agreement in
effect between
(i) the Trust Fund as holder of the related A-Note Mortgage Loan
and (ii) the
related B-Noteholder(s). The A/B Intercreditor Agreements consist
of the [DEF]
Co-Lender Agreement, the [GHI] Co-Lender Agreement and the [JKL]
Intercreditor
Agreement.
"A/B Loan Combination": Collectively, any A-Note Mortgage Loan and
the
related B-Note Loan(s). The term "A/B Loan Combination" shall
include any
successor REO Mortgage Loan with respect to the related A-Note
Mortgage Loan and
any successor REO B-Note Loan(s) with respect to the related B-Note
Loan(s). The
A/B Loan Combinations consist of the [DEF] Loan Combination, the
[GHI] Loan
Combination and the [JKL] Loan Combination.
"A/B Mortgaged Property": The Mortgaged Property securing an A/B
Loan
Combination. The A/B Mortgaged Properties consist of the [DEF]
Mortgaged
Property, the [GHI] Mortgaged Property and the [JKL] Mortgaged
Property.
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"A/B REO Account": With respect to any A/B Loan Combination, 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, and the related B-Noteholder(s), which shall be
entitled
substantially as follows: "[NAME OF SPECIAL SERVICER], as Special
Servicer for
[NAME OF TRUSTEE], as Trustee in trust for registered holders of
[Insert name of
issuing trust], Commercial Mortgage Pass-Through Certificates,
Series 200_-___,
and [NAME(S) OF THE RELATED B-NOTEHOLDER(S)], as their interests
may appear".
"A/B REO Property": With respect to each A/B Loan Combination, the
related Mortgaged Property if such Mortgaged Property is acquired
on behalf and
in the name of the Trust Fund, for the benefit of the
Certificateholders, and
the related B-Noteholder(s), as their interests may appear, through
foreclosure,
acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with
applicable law in connection with the default or imminent default
of such A/B
Loan Combination.
"[ABC] Available Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the portion of the
applicable
Available Distribution Amount for such Distribution Date
attributable to the
[ABC] Mortgage Loan or any successor REO Mortgage Loan with respect
thereto
(calculated without regard to any reimbursement of Nonrecoverable
Advances in
respect of any Mortgage Loan or REO Mortgage Loan, including the
[ABC] Mortgage
Loan or any successor REO Mortgage Loan with respect thereto,
and/or any payment
of Additional Trust Fund Expenses in respect of any Mortgage Loan
or REO
Mortgage Loan, including the [ABC] Mortgage Loan or any successor
REO Mortgage
Loan with respect thereto), reduced (to not less than zero) by (b)
the sum of
(i) all Nonrecoverable Advances (if any) with respect to the [ABC]
Mortgage Loan
or any successor REO Mortgage Loan with respect thereto reimbursed,
and all
Additional Trust Fund Expenses (if any) related or allocable to the
[ABC]
Mortgage Loan or any successor REO Mortgage Loan with respect
thereto paid, out
of general collections on the other Mortgage Loans and REO
Properties during the
related Collection Period and (ii) the excess, if any, of (A) the
aggregate of
the amounts described in clause (b)(i) of this definition for all
Collection
Periods, if any, prior to the related Collection Period, over (B)
the aggregate
of the amounts described in clause (a) of this definition for all
Distribution
Dates prior to the subject Distribution Date.
"[ABC] Change of Control Event": The event that exists when, as of
any
date of determination, (i) the initial principal balance of Loan
REMIC Regular
Interest [XXX]-II, as reduced by any payments of principal (whether
as principal
prepayments or otherwise) allocated to Loan REMIC Regular Interest
[XXX]-II, any
Appraisal Reduction Amount with respect to the [ABC] Mortgage Loan
and any
Realized Losses and Additional Trust Fund Expenses allocated to
Loan REMIC
Regular Interest [XXX]-II, is less than 25% of the initial
principal balance of
Loan REMIC Regular Interest [XXX]-II, as reduced by any payments of
principal
(whether as principal prepayments or otherwise allocated to the
Loan REMIC
Regular Interest [XXX]-II) or (ii) the Class [XXX] Representative
is an
Affiliate of the Mortgagor under the [ABC] Mortgage Loan.
"[ABC] Controlling Party": During a Class [XXX] Control Period, the
Class [XXX] Representative and, otherwise, the Controlling Class
Representative.
"[ABC] Material Non-Monetary Event of Default": A material
non-monetary event of default under the related loan documents that
results in a
Servicing Transfer Event with respect to the [ABC] Mortgage Loan
(which default
has not been, and is not being, cured by the Majority Class
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[XXX] Certificateholder(s) exercising the cure rights in accordance
with the
terms of Section 6.14 of this Agreement), including, without
limitation, any
event of default relating to the bankruptcy, insolvency,
liquidation or
dissolution of, or appointment of a receiver with respect to, the
related
Mortgagor.
"[ABC] Mortgage Loan": The Mortgage Loan identified as loan number
__
on the Mortgage Loan Schedule and secured by a Mortgage on the
[ABC] Mortgaged
Property.
"[ABC] Mortgaged Property": The Mortgaged Property identified on
the
Mortgage Loan Schedule as [ABC].
"[ABC] Payment Trigger Event": Either (i) a failure of the related
Mortgagor to make any payment due under the [ABC] Mortgage Loan or
to fund any
required reserve at the times required under the related loan
documents (and
such failure has not been, and is not being, cured by the Majority
Class [XXX]
Certificateholder(s) exercising the cure rights in accordance with
the terms of
Section 6.14 of this Agreement) or (ii) a [ABC] Material
Non-Monetary Event of
Default.
"[ABC] Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the aggregate of the amounts
comprising
the Principal Distribution Amount for such Distribution Date
pursuant to clauses
(a) through (f), inclusive, of the definition of "Principal
Distribution Amount"
that relate to the [ABC] Mortgage Loan or any successor REO
Mortgage Loan with
respect thereto.
"Accrued Certificate Interest": With respect to any Class of
Principal
Balance Certificates (other than the Class A-2FL Certificates) or
the Class
A-2FL REMIC II Regular Interest for any Distribution Date,
one-twelfth of the
product of (a) the annual Pass-Through Rate applicable to such
Class of
Certificates or the Class A-2FL REMIC II Regular Interest, as the
case may be,
for such Distribution Date, multiplied by (b) the related Class
Principal
Balance outstanding immediately prior to such Distribution Date;
and, with
respect to the Class X Certificates for any Distribution Date, the
aggregate
amount of Accrued Component Interest for the related Interest
Accrual Period for
all of the Class X Components for such Distribution Date. Accrued
Certificate
Interest shall be calculated on a 30/360 Basis and, with respect to
each Class
of Regular Certificates and the Class A-2FL REMIC II Regular
Interest 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 any Class X Component
for any Distribution Date, one-twelfth of the product of (a) the
annual Class X
Strip Rate applicable to such Class X Component for such
Distribution Date,
multiplied by (b) the Component Notional Amount of such Class X
Component
outstanding immediately prior to such Distribution Date. Accrued
Component
Interest shall be calculated on a 30/360 Basis and, with respect to
each Class X
Component for any Distribution Date, shall be deemed to accrue
during the
calendar month preceding the month in which such Distribution Date
occurs.
"Actual/360 Basis": The accrual of interest calculated on the basis
of
the actual number of days elapsed during any calendar month (or
other applicable
accrual period) in a year assumed to consist of 360 days.
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"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 Interest": With respect to any ARD Mortgage Loan after
its
Anticipated Repayment Date, all interest accrued on the principal
balance of
such ARD Mortgage Loan at the Additional Interest Rate (the payment
of which
interest shall, under the terms of such ARD Mortgage Loan, be
deferred until the
entire outstanding principal balance of such ARD Mortgage Loan has
been paid),
together with all interest, if any, accrued at the related Mortgage
Rate plus
the related Additional Interest Rate on such deferred interest. For
purposes of
this Agreement, Additional Interest on an ARD Mortgage Loan or any
successor REO
Mortgage Loan with respect thereto shall be deemed not to
constitute principal
or any portion thereof and shall not be added to the unpaid
principal balance or
Stated Principal Balance of such ARD Mortgage Loan or successor REO
Mortgage
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 "[NAME OF TRUSTEE], as Trustee, in trust
for the
registered holders of [Insert name of issuing trust], Commercial
Mortgage
Pass-Through Certificates, Series 200_-___, Additional Interest
Account". The
Additional Interest Account shall not be an asset of any REMIC
Pool.
"Additional Interest Rate": With respect to any ARD Mortgage Loan
after its Anticipated Repayment Date, the incremental increase in
the per annum
rate at which such ARD 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 Item 1123 Servicer": Any Additional Servicer that meets
the criteria in Item 1108(a)(2)(i) through (iii) of Regulation AB
with respect
to the Subject Securitization Transaction.
"Additional Servicer": Any Servicer, other than the Master
Servicer,
the Special Servicer or the Trustee.
"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 any party hereto on Advances made thereby (to
the extent not
offset by Penalty Interest and late payment charges or amounts
otherwise payable
to any related B-Noteholder) 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) (to the extent not otherwise paid
from Penalty
Interest and late payment charges or amounts otherwise payable to
any related
B-Noteholder or recovered from the related Mortgagor), as well as
(without
duplication) any of the expenses of the Trust Fund that may be
withdrawn (x)
pursuant to any of clauses (xi), (xii), (xiii), (xv), (xviii) and
(xix) 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 any of
clauses (x), (xi), (xii), (xiv) and (xv) of Section 3.05(g), out of
collections
on any A/B Loan Combination or any related A/B REO Property on
deposit in the
related A/B Custodial Account, but only to the extent that such
collections
would otherwise be transferred to the Certificate Account with
respect to the
related A-Note Mortgage Loan or any successor REO Mortgage Loan
with respect
thereto, or (z) pursuant to any of clauses (ii), (iv), (v) and (vi)
of Section
3.05(b) out of general collections on the
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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, an
A/B Custodial Account or the Distribution Account, as the case may
be.
"Additional Yield Amount": With respect to (i) any Distribution
Date,
(ii) any Class of Principal Balance Certificates (other than any
Excluded Class)
or the Class A-2FL REMIC II Regular Interest, and (iii) any Yield
Maintenance
Charge or Prepayment Premium actually collected during the related
Collection
Period on a Mortgage Loan or an REO Mortgage Loan (for purposes of
this
definition, the "Prepaid Loan") in a Loan Group with respect to
which
distributions of principal are being made on such Class of
Principal Balance
Certificates or the Class A-2FL REMIC II Regular Interest, as the
case may be,
on such Distribution Date, 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 or less than zero, the numerator of which is
equal to the
positive excess, if any, of (i) the Pass-Through Rate for such
Class of
Principal Balance Certificates or the Class A-2FL REMIC II Regular
Interest, as
the case may be, for such Distribution Date, 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 the Prepaid Loan, 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 Principal Balance
Certificates or the
Class A-2FL REMIC II Regular Interest, as the case may be, on such
Distribution
Date with respect to the Loan Group that includes the Prepaid Loan,
and the
denominator of which is equal to that portion of the Net Principal
Distribution
Amount for such Distribution Date that is attributable to the Loan
Group that
includes the Prepaid Loan.
"Adjusted REMIC I Remittance Rate": With respect to any REMIC I
Regular Interest (other than the REMIC I Regular Interest A-2FL),
for any
Distribution Date, an annual rate equal to the Pass-Through Rate in
effect for
such Distribution Date for the Class of Principal Balance
Certificates as to
which such REMIC I Regular Interest is the only Corresponding REMIC
I Regular
Interest; and, with respect to REMIC I Regular Interest A-2FL, for
any
Distribution Date, an annual rate equal to the Pass-Through Rate in
effect for
such Distribution for the Class A-2FL REMIC II Regular Interest.
"Administered REO Property": Any REO Property that relates to a
Serviced Loan.
"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.
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"Annual Assessment Report": As defined in Section 3.14.
"Annual Attestation Report": As defined in Section 3.14.
"Annual Statement of Compliance": As defined in Section 3.13.
"Anticipated Repayment Date": For each ARD Mortgage Loan, the date
specified in the related Mortgage Note after which the per annum
rate at which
interest accrues on such ARD Mortgage 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
Section
225.64 and conducted in accordance with the standards of the
American Appraisal
Institute by an Independent Appraiser, which Independent Appraiser
shall be
advised to take into account the factors specified in Section
3.09(a), any
available environmental, engineering or other third-party reports,
and other
factors that a prudent real estate appraiser would consider. Absent
bad faith,
any party hereto may conclusively rely on any Appraisal obtained by
or delivered
to that party in accordance with this Agreement for purposes of
establishing the
Appraised Value of a Mortgaged Property.
"Appraisal Reduction Amount": With respect to any Required
Appraisal
Mortgage Loan, subject to Section 6.12(d), Section 6.12(e), Section
6.13(d) and
Section 6.13(e), the excess, if any, of: (a) the sum of, as
calculated by the
Master Servicer as of the first Determination Date immediately
succeeding the
Master Servicer obtaining knowledge of the subject Mortgage Loan
becoming a
Required Appraisal Mortgage Loan 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
(without
duplication), (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, the Trustee or the Fiscal Agent, all unpaid
interest accrued on
such Required Appraisal Mortgage Loan 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 items
that, upon payment, would be Additional Trust Fund Expenses, in
respect of such
Required Appraisal Mortgage Loan, (iv) all related unreimbursed
Advances (plus
accrued interest thereon) made by or on behalf of the Special
Servicer, the
Master Servicer, the Trustee or the Fiscal Agent with respect to
such Required
Appraisal Mortgage Loan and (v) all currently due and unpaid real
estate taxes
and unfunded improvement reserves and assessments, insurance
premiums, and, if
applicable, ground rents in respect of the related Mortgaged
Property; over (b)
an amount equal to the sum of (i) the Required Appraisal Value and
(ii) all
escrows, reserves and letters of credit held for the purposes of
reserves
(provided such letters of credit may be drawn upon for reserve
purposes under
the related loan documents) held with respect to such Required
Appraisal
Mortgage Loan. If the Special Servicer fails to obtain a Required
Appraisal (or
letter update or internal valuation, if applicable) within the time
limit
described in Section 3.09(a), and such Required Appraisal (or
letter update or
internal valuation, if applicable) is required thereunder, then the
Appraisal
Reduction Amount for the related Required Appraisal Mortgage Loan
will equal 25%
of the outstanding
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principal balance of such Required Appraisal Mortgage Loan to be
adjusted upon
receipt of a Required Appraisal or letter update or internal
valuation, if
applicable.
Notwithstanding the foregoing, each A/B Loan Combination will be
treated as a single Mortgage Loan for purposes of calculating an
Appraisal
Reduction Amount. Any Appraisal Reduction Amount with respect to an
A/B Loan
Combination will be allocated first to the related B-Note Loan(s)
(or any
successor REO B-Note Loans with respect thereto) up to the
outstanding principal
balance thereof, and then to the related A-Note Mortgage Loan (or
any successor
REO Mortgage Loan with respect thereto). Any Appraisal Reduction
Amount with
respect to the [DEF] Loan Combination that is so allocable to the
[DEF] B-Note
Loans (or any successor REO B-Note Loans with respect thereto)
shall be
allocated first to the [DEF] B-Note Loan (or any successor REO
B-Note Loan with
respect thereto) that has the lower payment priority under the
[DEF] Co-Lender
Agreement with respect to principal, up to the outstanding
principal balance
thereof, and then to the other [DEF] B-Note Loan (or any successor
REO B-Note
Loan with respect thereto). Any Appraisal Reduction Amount with
respect to the
[GHI] Loan Combination that is so allocable to the [GHI] B-Note
Loans (or any
successor REO B-Note Loans with respect thereto) shall be allocated
between them
on a pro rata basis in accordance with the respective outstanding
principal
balances thereof. For purposes of determining the related A/B
Controlling Party,
the foregoing allocation shall be subject to the related A/B
Intercreditor
Agreement.
Notwithstanding the foregoing, in the case of the Outside Serviced
Loan Combination, the term "Appraisal Reduction Amount" shall have
the meaning
assigned to that term or any analogous term in the Outside
Servicing Agreement.
Further notwithstanding the foregoing, any Appraisal Reduction
Amount with
respect to the Outside Serviced Loan Combination shall be
calculated, and
allocated between the respective mortgage loans comprising the
Outside Serviced
Loan Combination by, the applicable Outside Servicer pursuant to
the Outside
Servicing Agreement; and the parties hereto shall be entitled to
rely on such
calculations, and the allocations to the Mortgage Loan or REO
Mortgage Loan, as
applicable, in such Outside Serviced Loan Combination, as reported
to them by
the applicable Outside Servicer.
"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. Absent bad faith, any party hereto may conclusively rely on
any Appraisal
(or letter update or internal valuation, if applicable) obtained by
or delivered
to that party in accordance with this Agreement for purposes of
establishing the
Appraised Value of a Mortgaged Property.
"ARD Mortgage Loan": Any Mortgage Loan that provides that if the
unamortized principal balance thereof is not repaid on its
Anticipated Repayment
Date, such Mortgage Loan will accrue Additional Interest at the
rate specified
in the related Mortgage Note and the Mortgagor is required to apply
excess
monthly cash flow generated by the related Mortgaged Property to
the repayment
of the outstanding principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or
instrument
executed by the Mortgagor in connection with the origination of the
related
Serviced Loan.
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"Assumed Periodic Payment": With respect to any Balloon Loan for
its
scheduled maturity date (provided that such Balloon Loan has not
been paid in
full and no other Liquidation Event has occurred in respect thereof
on or before
such scheduled maturity date) and for any Due Date thereafter as of
which such
Balloon 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 equal to the amount that would have been due in respect of
such Balloon
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 pay
interest accrued at the Mortgage Rate, in each case in effect
immediately prior
to, and without regard to the occurrence of, its scheduled maturity
date. With
respect to any REO Loan, for any Due Date therefor as of which the
related REO
Property or any interest therein 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 equal to the amount that would have been due in respect of
the
predecessor Mortgage Loan (or, in the case of any REO B-Note Loan,
the
predecessor B-Note Loan) on such Due Date if (x) the related
Mortgagor had been
required to continue to pay principal in accordance with the
amortization
schedule, if any, and pay interest accrued at the Mortgage Rate, in
each case in
effect on the Due Date immediately prior to the predecessor
Mortgage Loan
becoming an REO Mortgage Loan or the predecessor B-Note Loan
becoming an REO
B-Note Loan, as the case may be, and (y) the predecessor Mortgage
Loan or B-Note
Loan, as the case may be, had remained outstanding (or, if the
predecessor
Mortgage Loan or B-Note Loan, as the case may be, was a Balloon
Loan and such
Due Date coincides with or follows what had been its scheduled
maturity date,
the Assumed Periodic Payment that would have been deemed due in
respect of the
predecessor Mortgage Loan or B-Note Loan, as the case may be, 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 (a) the sum of, without duplication, (i)
the aggregate
of the amounts on deposit in the Certificate Account and the
Distribution
Account as of the close of business at the end of the related
Collection Period
and any other 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, the Trustee or the Fiscal
Agent for
distribution on the Certificates on such Distribution Date pursuant
to Section
4.03, (iii) to the extent not already included in clause (a)(i),
the aggregate
amount transferred from the Pool REO Account (if established)
and/or any A/B
Custodial Account to the Certificate Account, on or prior to the
P&I Advance
Date in such month, pursuant to Section 3.16(c) and/or Section
3.05(g), as
applicable, (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 Mortgage Loan and Interest Reserve REO Mortgage
Loan deposited
into the Distribution Account pursuant to Section 3.05(e), net of
(b) the
portion of the amount described in clause (a) 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 (A) the Certificate
Account pursuant
to clauses (ii)-(xvi) and (xviii)-(xx) of Section 3.05(a) or (B)
the
Distribution Account pursuant to clauses (ii)-(vi) of Section
3.05(b), (iii)
Prepayment Premiums and Yield Maintenance Charges, (iv) Additional
Interest, (v)
with
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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 Mortgage Loans and any Interest
Reserve REO
Mortgage Loans to be withdrawn from the Distribution Account and
deposited in
the Interest Reserve Account in respect of such Distribution Date
and held for
future distribution pursuant to Section 3.04(e), and (vi) 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 an A/B Intercreditor Agreement or this
Agreement to a
B-Noteholder.
"B-Note Loan": With respect to each of the A-Note Mortgage Loans,
each
related B-Note Loan that is (i) not included in the Trust Fund,
(ii) subordinate
in right of payment to such A-Note Mortgage Loan to the extent set
forth in the
related A/B Intercreditor Agreement and (iii) secured by the same
Mortgage on
the same Mortgaged Property as such A-Note Mortgage Loan.
"B-Noteholder": Each holder of (i) the Mortgage Note for a B-Note
Loan
and (ii) the corresponding rights under the related A/B
Intercreditor Agreement.
"Balloon Loan": Any Mortgage Loan or B-Note 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 Mortgage Loan": Any Mortgage Loan that is a Balloon Loan.
"Balloon Payment": With respect to any Balloon Loan as of any date
of
determination, the Periodic Payment payable on the scheduled
maturity date of
such Serviced Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time
to time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Book-Entry Non-Registered Certificate": Any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
"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 Chicago,
Illinois) or the offices of the Master Servicer (which as of the
Closing Date is
Overland Park, Kansas) 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.
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"Certificate": Any one of the [Insert name of issuing trust],
Commercial Mortgage Pass-Through Certificates, Series 200_-___, 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
"[NAME OF
MASTER SERVICER], as Master Servicer for [NAME OF TRUSTEE], as
Trustee, on
behalf of and in trust for the registered holders of [Insert name
of issuing
trust], Commercial Mortgage Pass-Through Certificates, Series
200_-___".
"Certificate Deferred Interest": The amount by which interest
distributable with respect to any Class of Principal Balance
Certificates (other
than the Class A-2FL Certificates) or the Class A-2FL REMIC II
Regular Interest,
as the case may be, is reduced by the amount of Mortgage Deferred
Interest
allocable to such Class of Certificates or the Class A-2FL REMIC II
Regular
Interest on any Distribution Date.
"Certificate Factor": With respect to any Class of Certificates
(other
than the Class R and Class Y Certificates) or the Class A-2FL REMIC
II Regular
Interest as of any date of determination, a fraction, expressed as
a decimal
carried to eight places, the numerator of which is the then-current
Class
Principal Balance or Class Notional Amount, as applicable, of such
Class of
Certificates or the Class A-2FL REMIC II Regular Interest, as the
case may be,
and the denominator of which is the Original Class Principal
Balance or Original
Class Notional Amount of such Class of Certificates or the Class
A-2FL REMIC II
Regular Interest, as the case may be.
"Certificate Notional Amount": With respect to any Class X
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 Notional Amount
of the Class
X Certificates.
"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 Principal
Balance
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 Class R 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, the Trustee
or the
Fiscal Agent in its respective capacity as such (except with
respect to
amendments or waivers referred to in Sections 7.04 and 11.01
hereof, any
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consent, approval or waiver required or permitted to be made by the
Majority
Controlling Class Certificateholder (or, with respect to the [ABC]
Mortgage Loan
or any related REO Property, the Majority Class [XXX]
Certificateholder(s)) or
the Controlling Class Representative (or, with respect to the [ABC]
Mortgage
Loan or any related REO Property, the Class [XXX] Representative)
and any
election, removal or replacement of the Special Servicer or the
Controlling
Class Representative (or, with respect to the [ABC] Mortgage Loan
or any related
REO Property, the Class [XXX] Representative) pursuant to Section
6.09 or
Section 3.25, as applicable), any Certificate registered in the
name of the
Depositor, any Mortgage Loan Seller, the Master Servicer, the
Special Servicer,
the Trustee or the Fiscal Agent, 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.
"Citigroup": Citigroup Global Markets Realty Corp. or its successor
in
interest.
"Citigroup Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of [______________________],
between the
Depositor and Citigroup and relating to the transfer of the
Citigroup Mortgage
Loans to the Depositor.
"Citigroup Mortgage Loans": Each of the Mortgage Loans transferred
and
assigned to the Depositor pursuant to the Citigroup Mortgage Loan
Purchase
Agreement and each Qualified Substitute Mortgage Loan delivered in
replacement
thereof in accordance with this Agreement and the Citigroup
Mortgage Loan
Purchase Agreement.
"Class": Collectively, all of the Certificates bearing the same
alphabetic or alphanumeric, as applicable, class designation.
"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-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-1D Certificate": Any one of the Certificates with a "Class
A-1D" 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-2FL Additional Fixed Swap Payment": With respect to any
Distribution Date and the Class A-2FL Swap Payment Date to which it
relates
based on the confirmation under the Swap
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Agreement, the applicable "Additional Fixed Amount" within the
meaning of the
confirmation under the Swap Agreement.
"Class A-2FL Available Funds": With respect to any Distribution
Date,
an amount equal to (a) the sum of (i) the total amount of all
principal and/or
interest distributions, as well as all distributions of Yield
Maintenance
Charges and Prepayment Premiums, properly made on or in respect of
the Class
A-2FL REMIC II Regular Interest with respect to such Distribution
Date and (ii)
the amounts, if any, received from the Swap Counterparty pursuant
to the Swap
Agreement for such Distribution Date, less (b) any Class A-2FL Net
Fixed Swap
Payment, Class A-2FL Additional Fixed Swap Payment and Class A-2FL
Fixed Payer
Shortfall Reimbursement Payment required to be paid to the Swap
Counterparty
pursuant to the Swap Agreement, consistent with Section 3.27, for
such
Distribution Date.
"Class A-2FL Certificate": Any one of the Certificates with a
"Class
A-2FL" designation on the face thereof, substantially in the form
of Exhibit A-1
hereto, and evidencing an interest in Grantor Trust A-2FL.
"Class A-2FL Distribution Conversion": With respect to any
Distribution Date (i) immediately upon and during the continuation
of a Swap
Default of the nature described in clause (i) of the definition of
"Swap
Default" while the Trustee is pursuing remedies under the Swap
Agreement
pursuant to Section 3.27, or (ii) immediately upon and following
the termination
of the Swap Agreement until any replacement agreement is entered
into the
conversion of distributions to the Class A-2FL Certificates from
distributions
based, in part, on floating interest payments from the Swap
Counterparty under
the Swap Agreement to distributions based solely on distributions
in respect of
the Class A-2FL REMIC II Regular Interest, as specified in Section
4.01(c).
"Class A-2FL Fixed Swap Payment": With respect to any Distribution
Date and the Class A-2FL Swap Payment Date to which it relates
based on the
confirmation under the Swap Agreement, the applicable "Fixed
Amount" within the
meaning of the confirmation under the Swap Agreement.
"Class A-2FL Fixed Payer Shortfall Reimbursement Payment": With
respect to any Distribution Date and the Class A-2FL Swap Payment
Date to which
it relates based on the confirmation under the Swap Agreement, the
applicable
"Fixed Payer Shortfall Reimbursement Amount" within the meaning of
the
confirmation under the Swap Agreement.
"Class A-2FL Floating Swap Payment": With respect to any
Distribution
Date and the Class A-2FL Swap Payment Date to which it relates
based on the
confirmation under the Swap Agreement, the applicable "Floating
Amount" within
the meaning of the confirmation under the Swap Agreement.
"Class A-2FL Grantor Trust Assets": The assets of Grantor Trust
A-2FL.
"Class A-2FL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) the
Distributable
Certificate Interest with respect to the Class A-2FL REMIC II
Regular Interest
for such Distribution Date and, to the extent not previously paid,
for all prior
Distribution Dates, (ii) any Class A-2FL Net Floating Swap Payment
received from
the Swap Counterparty for distribution on such Distribution Date
and (iii) if
the Swap Agreement is terminated
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and a replacement Swap Agreement is not obtained, any Swap
Termination Payment
collected during the related Collection Period, less (b) any Class
A-2FL Net
Fixed Swap Payment and/or Class A-2FL Fixed Payer Shortfall
Reimbursement
Payment made to the Swap Counterparty with respect to such
Distribution Date.
"Class A-2FL Net Fixed Swap Payment": With respect to any
Distribution
Date, the excess, if any of (i) the Class A-2FL Fixed Swap Payment
for that
Distribution Date over (ii) the Class A-2FL Floating Swap Payment
for that
Distribution Date.
"Class A-2FL Net Floating Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class A-2FL
Floating Swap
Payment for that Distribution Date over (ii) the Class A-2FL Fixed
Swap Payment
for that Distribution Date.
"Class A-2FL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal
allocated pursuant
to Section 4.01 in respect of the Class A-2FL REMIC II Regular
Interest on such
Distribution Date.
"Class A-2FL REMIC II Regular Interest": The uncertificated
interest
in REMIC II, designated as "Class A-2FL", constituting a "regular
interest" in
REMIC II for purposes of the REMIC Provisions and having the
characteristics
attributable thereto in this Agreement.
"Class A-2FL Swap Payment Date": The "Payment Date" within the
meaning
of the confirmation under the Swap Agreement.
"Class A-2FX Certificate": Any one of the Certificates with a
"Class
A-2FX" 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-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "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-1
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-3
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-3
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-SB Certificate": Any one of the Certificates with a "Class
A-SB" 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.
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"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the targeted Class Principal Balance of the
Class A-SB
Certificates for such date set forth on Schedule V attached hereto.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing a "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-3
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-3
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-3
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-4
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-4
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-4
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-4
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-5
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-5
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-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
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"Class N Certificate": Any one of the Certificates with a "Class N"
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 Notional Amount": With respect to the Class X Certificates,
the
Class X Notional Amount.
"Class O Certificate": Any one of the Certificates with a "Class O"
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 P Certificate": Any one of the Certificates with a "Class P"
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 Principal Balance": The aggregate principal balance of any
Class of Principal Balance Certificates or the Class A-2FL REMIC II
Regular
Interest, as the case may be, outstanding from time to time. As of
the Closing
Date, the Class Principal Balance of each Class of Principal
Balance
Certificates (exclusive of the Class A-2FL Certificates) and the
Class A-2FL
REMIC II Regular Interest shall equal the Original Class Principal
Balance
thereof. On each Distribution Date, the Class Principal Balances of
the
respective Classes of the Principal Balance Certificates (exclusive
of the Class
A-2FL Certificates) and the Class A-2FL REMIC II Regular Interest
shall each 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 Balances of the respective Classes of
Principal
Balance Certificates (exclusive of the Class A-2FL Certificates)
and the Class
A-2FL REMIC II Regular Interest will each be increased on any
Distribution Date
by the amount of any Certificate Deferred Interest with respect
thereto for such
Distribution Date. Distributions in respect of a reimbursement of
Realized
Losses and Additional Trust Fund Expenses previously allocated to a
Class of
Principal Balance Certificates or the Class A-2FL REMIC II Regular
Interest, as
the case may be, shall not constitute distributions of principal
and shall not
result in reduction of the related Class Principal Balance. The
Class Principal
Balance of the Class A-2FL Certificates shall at all times equal
the Class
Principal Balance of the Class A-2FL REMIC II Regular Interest.
"Class Q Certificate": Any one of the Certificates with a "Class Q"
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 R Certificate": Any one of the Certificates with a "Class R"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing sole class of "residual interests"
in each of
the Loan REMIC, REMIC I and REMIC II for purposes of the REMIC
Provisions.
"Class X Certificate": Any one of the Certificates with a "Class X"
designation on the face thereof, substantially in the form of
Exhibit A-2
attached hereto, and evidencing all of the Class X Components, each
of which is
a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
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"Class X Component": Any of the ______ components of the Class X
Certificates, each of which shall constitute a separate "regular
interest" in
REMIC II for purposes of the REMIC Provisions. Each Class X
Component shall
accrue interest at its Class X Strip Rate in effect from time to
time on its
Component Notional Amount outstanding from time to time, which
Component
Notional Amount shall equal the REMIC I Principal Balance of such
Class X
Component's Corresponding REMIC I Regular Interest. The respective
Class X
Components shall be designated as follows: [Component X-A-1,
Component X-A-1D,
Component X-A-2FL, Component X-A-2FX, Component X-A-3, Component
X-A-SB,
Component X-A-4, Component X-A-1A, Component X-A-M, Component
X-A-J, Component
X-B, Component X-C, Component X-D, Component X-E, Component X-F,
Component X-G,
Component X-H, Component X-J, Component X-K, Component X-L,
Component X-M,
Component X-N, Component X-O, Component X-P and Component X-Q].
"Class X Notional Amount": With respect to the Class X
Certificates,
as of any date of determination, the sum of the then Component
Notional Amounts
of all of the Class X Components.
"Class X Strip Rate": With respect to any Class X Component for any
Distribution Date, an annual rate equal to the excess, if any, of
the REMIC I
Remittance Rate over the Adjusted REMIC I Remittance Rate with
respect to such
Class X Component's Corresponding REMIC I Regular Interest for such
Distribution
Date.
"Class [XXX] Available Distribution Amount": With respect to any
Distribution Date, an amount equal to the lesser of: (a) the
aggregate amount
deemed distributed with respect to Loan REMIC Regular Interest
[XXX]-II on such
Distribution Date pursuant to Section 4.01(j); and (b) the sum of
(i) all
Distributable Certificate Interest with respect to the Class [XXX]
Certificates
for such Distribution Date and, to the extent not previously
distributed, for
all prior Distribution Dates, (ii) the Class [XXX] Principal
Distribution Amount
for such Distribution Date and (iii) all Realized Losses and
Additional Trust
Fund Expenses previously allocated to, but not previously
reimbursed with
respect to, the Class [XXX] Certificates.
"Class [XXX] Certificate": Any one of the Certificates with a
"Class
[XXX]" 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 [XXX] Control Period": Any period when a [ABC] Change of
Control Event does not exist.
"Class [XXX] Principal Distribution Amount": With respect to any
Distribution Date, the total amount of principal deemed distributed
(or,
assuming that the available funds were sufficient, that would have
been deemed
distributed) to REMIC I with respect to Loan REMIC Regular Interest
[XXX]-II on
such Distribution Date pursuant to Section 4.01(j).
"Class [XXX] Representative": As defined in Section 3.25.
"Class Y Certificate": Any one of the Certificates with a "Class
Y-I"
designation on the face thereof, substantially in the form of
Exhibit A-7
attached hereto, and evidencing a proportionate interest in Grantor
Trust Y.
"Class Y Grantor Trust Assets": The assets of Grantor Trust Y.
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"Closing Date": __________________, 200_.
"CMSA": The Commercial Mortgage Securities Association or any
successor organization.
"CMSA Advance Recovery Report": A 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 recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Bond Level 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 and containing such additional information as may from
time to time
be approved by the CMSA for commercial mortgage securities
transactions
generally. In connection with preparing the CMSA Comparative
Financial Status
Report, the Master Servicer shall process (a) interim financial
statements
beginning with interim financial statements for the fiscal quarter
ending
[______________________], and (b) annual financial statements
beginning with
annual financial statements for the 200_ 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
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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 and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Loan Periodic Update File": 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.
"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.
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"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 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 Agreement": Any of the A/B Intercreditor Agreements and
the
[MNO] Co-Lender Agreement.
"Collection Period": With respect to any Distribution Date or
P&I
Advance Date, the period that begins on the day immediately
following the
Determination Date in the calendar month preceding the month in
which such
Distribution Date or such P&I Advance Date, as the case may be,
occurs (or, in
the case of the initial Distribution Date and the initial P&I
Advance Date,
commencing on the day after the related Cut-off Date) and ending on
and
including the Determination Date in the month in which such
Distribution Date or
such P&I Advance Date, as the case may be, occurs.
"Commission": The United States Securities and Exchange Commission
or
any successor agency.
"Component Notional Amount": With respect to each Class X Component
and any date of determination, an amount equal to the then REMIC I
Principal
Balance of its Corresponding REMIC I Regular Interest.
"Controlling Class": As of any date of determination, the most
subordinate (based on the payment priorities of Section 4.01(a))
outstanding
Class of Sequential Pay Certificates, that has a Class Principal
Balance that is
greater than 25% of the Original Class Principal Balance thereof;
provided,
however, that if no Class of Sequential Pay Certificates has a
Class Principal
Balance that satisfies such requirement, then the Controlling Class
shall be the
most subordinate (based on the payment priorities of Section
4.01(a))
outstanding Class of Sequential Pay Certificates that has a Class
Principal
Balance greater than zero. For purposes of determining, and
exercising the
rights of, the Controlling Class, the Senior Class A Certificates
shall be
deemed a single Class of Certificates.
"Controlling Class Representative": As defined in Section 3.25(a).
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"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 [______________________].
"Corrected Loan": Any Serviced Loan that had been a Specially
Serviced
Loan but has ceased to be a Specially Serviced Loan in accordance
with the
definition of "Specially Serviced Loan" (other than by reason of a
Liquidation
Event or the related Mortgaged Property becoming an REO Property).
None of the
mortgage loans comprising the Outside Serviced Loan Combination
shall constitute
a Corrected Loan under this Agreement.
"Corrected Mortgage Loan": A Mortgage Loan that is a Corrected
Loan.
"Corresponding REMIC I Regular Interest": With respect to any Class
of
Principal Balance Certificates, the REMIC I Regular Interest that
has an
alphabetic or alphanumeric, as applicable, designation that is the
same as the
alphabetic or alphanumeric, as the case may be, designation for
such Class of
Principal Balance Certificates; and, with respect to any Class X
Component, the
REMIC I Regular Interest that has an alphabetic or alphanumeric, as
applicable,
designation that, when preceded by "X-", is the same as the
alphabetic or
alphanumeric, as the case may be, designation for such Class X
Component.
"Crossed Group": With respect to any Mortgage Loan that is a
Crossed
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.
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"Cut-off Date": Individually and collectively, as the context may
require: (i) with respect to each Mortgage Loan that has a Due Date
in
___________ 200_, the related Due Date of such Mortgage Loan in
___________
2006; and (ii) with respect to any Mortgage Loan that has its first
Due Date in
_____________ 200_, ________________, 200_.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan, as of the
Cut-off Date,
after application of all unscheduled payments of principal received
on or before
such date and the principal component of all Periodic Payments due
on or before
such date, whether or not received.
"Debt Service Coverage Ratio": With respect to any Serviced Loan,
as
of any date of determination, the ratio of (x) the annualized Net
Cash Flow
(before payment of any debt service on such Serviced 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 Serviced Loan
(plus, in the
case of any B-Note Loan, the Periodic Payment in effect for the
related A-Note
Mortgage Loan) as of such date of determination.
"Defaulted Mortgage Loan": A Mortgage Loan (other than the Outside
Serviced Mortgage Loan) (i) that (A) is delinquent 60 days or more
in respect to
a Periodic Payment (not including the Balloon Payment) or (B) 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 subject 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 (ii) 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.
"[DEF] B-Note Loans": As defined in the Preliminary Statement
hereto.
"[DEF] Co-Lender Agreement": As defined in the Preliminary
Statement
hereto.
"[DEF] Controlling B-Noteholder": The "Controlling Note B Holder"
within the meaning of the [DEF] Co-Lender Agreement.
"[DEF] Controlling Party": The [DEF] Directing Holder or any
representative thereof designated in accordance with the [DEF]
Co-Lender
Agreement.
"[DEF] Directing Holder": The "Directing Holder" within the meaning
of
the [DEF] Co-Lender Agreement.
"[DEF] Loan Combination": As defined in the Preliminary Statement
hereto.
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"[DEF] Major Action": A "Major Action" within the meaning of the
[DEF]
Co-Lender Agreement.
"[DEF] Mortgage Loan": As defined in the Preliminary Statement
hereto.
"[DEF] Mortgaged Property": As defined in the Preliminary Statement
hereto.
"[DEF] REO Property": The [DEF] Mortgaged Property, if it shall
become
an REO Property hereunder.
"[DEF] Special Servicer": The party responsible for performing the
duties of Special Servicer hereunder with respect to the [DEF] Loan
Combination
or any related REO Property.
"[DEF] Threshold Event Collateral": Any "Threshold Event
Collateral"
within the meaning of the [DEF] Co-Lender Agreement.
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States government obligations 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. If an
A-Note Mortgage Loan is a Defeasance Loan, then any related B-Note
Loan may also
be a Defeasance Loan.
"Deficient Valuation": With respect to any Mortgage Loan or B-Note
Loan, a valuation by a court of competent jurisdiction of the
Mortgaged Property
in an amount less than the then outstanding principal balance of
such Mortgage
Loan or B-Note Loan, as the case may be, which valuation results
from a
proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": As defined in Section 5.03(a).
"Definitive Non-Registered Certificate": Any Non-Registered
Certificate that is a Definitive Certificate.
"Depositor": Citigroup 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 Exchange Act.
"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.
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"[____________________] Mortgage Loan Purchase Agreement": That
certain mortgage loan purchase agreement, dated as of
_______________, between
the Depositor and [_____________________________] and relating to
the transfer
of the [____________________] Mortgage Loans to the Depositor.
"[____________________] Mortgage Loans": Each of the Mortgage Loans
transferred and assigned to the Depositor pursuant to the
[____________________]
Mortgage Loan Purchase Agreement and each Qualified Substitute
Mortgage Loan
delivered in replacement thereof in accordance with this Agreement
and the
[____________________] Mortgage Loan Purchase Agreement.
"Determination Date": The 11th day of each month, or if such 11th
day
is not a Business Day, the immediately succeeding Business Day,
commencing in
___________ 200_.
"Directly Operate": With respect to any Administered REO Property,
the
furnishing or rendering of services to the tenants thereof, the
management of
such Administered REO Property, the holding of such Administered
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
Administered 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 Administered
REO Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or REO
Mortgage Loan for purposes of allocating any Yield Maintenance
Charge or
Prepayment Premium received thereon or with respect thereto among
the respective
Classes of the Principal Balance Certificates (other than any
Excluded Class
thereof) and the Class A-2FL REMIC II Regular Interest, the
"Discount Rate"
shall be determined as specified in the related loan documents for
the purposes
of calculating the subject Yield Maintenance Charge or Prepayment
Premium.
"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 Class R 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 Class R 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.
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"Distributable Certificate Interest": With respect to any Class of
Regular Certificates or the Class A-2FL REMIC II Regular Interest
for any
Distribution Date, the Accrued Certificate Interest in respect of
such Class of
Certificates or the Class A-2FL REMIC II Regular Interest, as the
case may be,
for such Distribution Date, reduced (to not less than zero) by the
sum of: (i)
the portion of any Net Aggregate Prepayment Interest Shortfall for
such
Distribution Date allocated to such Class of Regular Certificates
or the Class
A-2FL REMIC II Regular Interest, as the case may be, in accordance
with Section
4.04(f); and (ii) except in the case of a Class of Class X
Certificates, the
portion of any Mortgage Deferred Interest allocated to such Class
of Regular
Certificates or the Class A-2FL REMIC II Regular Interest, as the
case may be,
on such Distribution Date in accordance with Section 4.04(d).
"Distribution Account": The segregated account or accounts created
and
maintained by the Trustee on behalf of the Certificateholders
(exclusive of the
Holders of the Class Y Certificates) pursuant to Section 3.04(b)
which shall be
entitled "[NAME OF TRUSTEE], as Trustee, in trust for the
registered holders of
[Insert name of issuing trust], Commercial Mortgage Pass-Through
Certificates,
Series 200_-___."
"Distribution Date": With respect to any Determination Date, the
fourth Business Day following such Determination Date.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Serviced Loan on or prior to
its
Stated Maturity Date, the day of the month set forth in the related
Mortgage
Note on which each Periodic Payment on such Serviced Loan is
scheduled to be
first due; (ii) any Serviced Loan after its Stated Maturity Date,
the day of the
month set forth in the related Mortgage Note on which each Periodic
Payment on
such Serviced 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 Serviced 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 "Aa3" by
Moody's (if then
rated by Moody's) and "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 either
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
either 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, (ii) an account or accounts
maintained
with [________] so long as [________] (X) has a long-term unsecured
debt rating
of at least "A" and a short-term rating of at least "A-1" from
S&P and (Y) has a
long-term unsecured debt rating of
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at least "A1" and a short-term rating of at least "P-1" from
Moody's, or (iii) 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 Section 9.10(b), having in
either case a
combined capital and surplus of at least $50,000,000 and subject to
supervision
or examination by federal or state authority, or the use of such
account 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.
"Enhancement/Support Provider": Any enhancement or support provider
contemplated by Item 1114(b) or Item 1115 of Regulation AB with
respect to the
Trust Fund or any one or more Classes of Certificates.
"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 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 Loan as to which the related Mortgaged Property is not
multifamily
property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"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).
"Excess Servicing Strip": With respect to any Mortgage Loan or REO
Mortgage Loan, the portion of the related Master Servicing Fee
(which portion
shall not include that portion payable to any Sub-Servicer party to
a
Sub-Servicing Agreement dated the date hereof) that accrues at the
related
Excess Servicing Strip Rate in effect from time to time, subject to
reduction by
the Trustee in accordance with Section 3.11(a).
"Excess Servicing Strip Rate": With respect to any Mortgage Loan or
REO Mortgage Loan, subject to reduction by the Trustee in
accordance with
Section 3.11(a), a rate per annum equal to the excess, if any, of
(A) the
related Master Servicing Fee Rate over (B) the sum of (1) ___% per
annum plus
(2) the annual sub-servicing fee rate for any related third-party
Sub-Servicer
of such Mortgage Loan or REO Mortgage Loan, as the case may be, on
behalf of the
Master Servicer.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Reportable Event": With respect to (a) the Trustee
or,
if and to the extent specifically applicable thereto or to its
duties on behalf
of the Trustee, any Servicing Representative of the Trustee or any
Trustee
Appointee, any Trustee Reportable Event, (b) the Master Servicer
or, if and to
the extent specifically applicable thereto or to its duties on
behalf of the
Master Servicer, any Servicing Representative of the Master
Servicer, any Master
Servicer Reportable Event, and (c) the Special
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Servicer or, if and to the extent specifically applicable thereto
or to its
duties on behalf of the Special Servicer, any Servicing
Representative of the
Special Servicer, any Special Servicer Reportable Event.
"Exchange Act Reporting Year": Each of (a) the Trust's fiscal year
2006, and (b) any subsequent fiscal year of the Trust, but only if
as of the
beginning of such subsequent fiscal year of the Trust, the
Registered
Certificates are held in the aggregate by at least 300 holders
(which may
consist of (i) in the case of Registered Certificates held in
definitive form,
direct Holders of such Definitive Certificates, and/or (ii) in the
case of
Registered Certificates held in book-entry form through the
Depository,
Depository Participants having accounts with the Depository).
"Exchange Act Reports": As defined in Section 8.16(a).
"Excluded Class": Any Class of Principal Balance Certificates other
than the Class A-1 Certificates, Class A-1D Certificates, Class
A-2FX
Certificates, Class A-3 Certificates, Class A-SB Certificates,
Class A-4
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 and Class J Certificates.
"Exemption": Department of Labor Prohibited Transaction Exemption
("PTE") 91-23, as amended from time to time, or any successor
thereto.
"Exemption-Favored Party": Any of (i) Citigroup Global Markets
Inc.,
(ii) any Person directly or indirectly, through one or more
intermediaries,
controlling, controlled by or under common control with Citigroup
Global Markets
Inc., and (iii) any member of any underwriting syndicate or selling
group of
which any Person described in clauses (i) and/or (ii) is a manager
or co-manager
with respect to a Class of Investment Grade Certificates.
"FASB 140": The Financial Accounting Standards Board's Statement
No.
140, entitled "Accounting for Transfers and Servicing of Financial
Assets and
Extinguishment of Liabilities", issued in September 2002.
"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 Specially Serviced Loan or
Administered REO
Property (other than a Mortgage Loan or REO Property, as the case
may be, that
was purchased or replaced by any of the Mortgage Loan Sellers,
pursuant to the
related Mortgage Loan Purchase Agreement, by a related Non-Trust
Loan Noteholder
pursuant to the related Co-Lender Agreement, or by the Master
Servicer, the
Special Servicer or the Majority Controlling Class
Certificateholder pursuant to
Section 9.01) that there has been a recovery of all Insurance
Proceeds,
Liquidation Proceeds, REO Revenues and other payments or recoveries
that the
Special Servicer has determined, in accordance with the Servicing
Standard, will
be ultimately recoverable (without regard to any [DEF] or [GHI]
Threshold Event
Collateral); provided that the term "Final Recovery Determination"
shall include
any comparable determination made with respect to the Outside
Serviced Mortgage
Loan or any related REO Property by the Outside Special Servicer
pursuant to the
Outside Servicing Agreement.
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"Floating Rate Account": A segregated custodial account or accounts
or
subaccount of the Distribution Account created and maintained by
the Trustee,
pursuant to Section 3.04(i), in trust for the Class A-2FL
Certificateholders and
Swap Counterparty, as their interests may appear, which shall be
entitled "[NAME
OF TRUSTEE], as Trustee, in trust for the registered holders of
[Insert name of
issuing trust], Commercial Mortgage Pass-Through Certificates,
Series 200_-___,
Class A-2FL, and [NAME OF SWAP COUNTERPARTY], as their interests
may appear,
Floating Rate Account". Any such account or subaccount shall be an
Eligible
Account or a subaccount of an Eligible Account.
"Fiscal Agent": [Insert name of initial Fiscal Agent], in its
capacity
as fiscal agent hereunder, or any successor fiscal agent appointed
as herein
provided.
"FNMA": Federal National Mortgage Association or any successor.
"Form 8-K": Exchange Act Form 8-K, as and to the extent that such
form
is applicable for an asset-backed issuer to satisfy its reporting
requirements
under the Exchange Act, and the rules and regulations promulgated
thereunder,
including for purposes of filing current reports under Section 13
or 15(d) of
the Exchange Act, filed pursuant to Rule 13a-11 or Rule 15d-11, and
for reports
of nonpublic information required to be disclosed by Regulation FD
(17 C.F.R.
243.100 and 243.101). For purposes of this Agreement, "Form 8-K"
shall be deemed
to include any successor or equivalent Exchange Act form adopted by
the
Commission.
"Form 8-K Current Report": A current report on Form 8-K.
"Form 8-K Required Information": Any and all information required
pursuant to the Exchange Act and/or the rules and regulations
promulgated
thereunder to be reported by an asset-backed issuer under Form 8-K.
"Form 10-D": Exchange Act Form 10-D, as and to the extent that such
form is applicable for an asset-backed issuer to satisfy its
reporting
requirements under the Exchange Act, and the rules and regulations
promulgated
thereunder, including for purposes of filing distribution reports
under Section
13 or 15(d) of the Exchange Act, filed pursuant to Rule 13a-17 or
Rule 15d-17.
For purposes of this Agreement, "Form 10-D" shall be deemed to
include any
successor or equivalent Exchange Act form adopted by the
Commission.
"Form 10-D Distribution Report": A distribution report on Form
10-D.
"Form 10-D Required Information": Any and all information required
pursuant to the Exchange Act and/or the rules and regulations
promulgated
thereunder to be reported by an asset-backed issuer under Form
10-D.
"Form 10-K": Exchange Act Form 10-K, as and to the extent that such
form is applicable for an asset-backed issuer to satisfy its
reporting
requirements under the Exchange Act, and the rules and regulations
promulgated
thereunder, including for purposes of filing annual reports
pursuant to Section
13 or 15(d) of the Exchange Act for which no other form is
prescribed, as well
as for filing transition reports pursuant to Section 13 or 15(d) of
the Exchange
Act. For purposes of this Agreement, "Form 10-K" shall be deemed to
include any
successor or equivalent Exchange Act form adopted by the
Commission.
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"Form 10-K Annual Report": An annual report on Form 10-K.
"Form 10-K Required Information": Any and all information required
pursuant to the Exchange Act and/or the rules and regulations
promulgated
thereunder to be reported by an asset-backed issuer under Form
10-K.
"Gain-on-Sale Proceeds": With respect to any Specially Serviced
Mortgage Loan or Administered REO Property, the excess, if any, of
(i) any
Liquidation Proceeds with respect to the subject Mortgage Loan or
REO Property,
as the case may be (net of any related Liquidation Expenses and, in
the case of
any A-Note Mortgage Loan or the related A/B REO Property, further
net of any
portion of such Liquidation Proceeds payable to the related
B-Noteholder(s)),
over (ii) the Purchase Price for such Mortgage Loan or the related
REO Mortgage
Loan, as the case may be, 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
Trustee pursuant to Section 3.04(f) on behalf of the
Certificateholders, which
shall be entitled "[NAME OF TRUSTEE], as Trustee, in trust for the
registered
holders of [Insert name of issuing trust], Commercial Mortgage
Pass-Through
Certificates, Series 200_-___." Any such account shall be an
Eligible Account or
a subaccount of an Eligible Account.
"[GHI] B-Noteholder": The holder of the promissory note for a [GHI]
B-Note Loan.
"[GHI] B-Note Loans": As defined in the Preliminary Statement
hereto.
"[GHI] Co-Lender Agreement": As defined in the Preliminary
Statement
hereto.
"[GHI] Controlling B-Noteholder": The "Controlling Note B Holder"
within the meaning of the [GHI] Co-Lender Agreement.
"[GHI] Controlling Party": The [GHI] Directing Holder or any
representative thereof designated in accordance with the [GHI]
Co-Lender
Agreement.
"[GHI] Directing Holder": The "Directing Holder" within the meaning
of
the [GHI] Co-Lender Agreement.
"[GHI] Loan Combination": As defined in the Preliminary Statement
hereto.
"[GHI] Major Action": A "Major Action" within the meaning of the
[GHI]
Co-Lender Agreement.
"[GHI] Mortgage Loan": As defined in the Preliminary Statement
hereto.
"[GHI] Mortgaged Property": As defined in the Preliminary Statement
hereto.
"[GHI] Special Servicer": The party responsible for performing the
duties of Special Servicer hereunder with respect to the [GHI] Loan
Combination
or any related REO Property.
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"[GHI] Threshold Event Collateral": Any "Threshold Event
Collateral"
within the meaning of the [GHI] Co-Lender Agreement.
"Global Certificate": With respect to any Class of Book-Entry
Non-Registered Certificates, either the related Rule 144A Global
Certificate or
the Regulation S Global Certificate.
"Grantor Trust": Either of Grantor Trust A-2FL or Grantor Trust Y,
as
applicable.
"Grantor Trust A-2FL": The portion of the Trust Fund consisting of
(i)
the Class A-2FL REMIC II Regular Interest, (ii) the Swap Agreement
and payments
by the Swap Counterparty thereunder and (iii) the Floating Rate
Account,
intended to be treated as a "grantor trust" within the meaning of
the Grantor
Trust Provisions.
"Grantor Trust Assets": With respect to Grantor Trust A-2FL, the
Class
A-2FL Grantor Trust Assets; and, with respect to Grantor Trust Y,
the Class Y
Grantor Trust Assets.
"Grantor Trust Y": The portion of the Trust Fund consisting of (i)
any
Additional Interest with respect to the ARD Mortgage Loans after
their
respective Anticipated Repayment Dates and (ii) amounts held from
time to time
in the Additional Interest Account that represent Additional
Interest, intended
to be treated as a "grantor trust" within the meaning of the
Grantor Trust
Provisions.
"Grantor Trust Provisions": Subpart E of Part I of subchapter J of
the
Code and Treasury regulation section 301.7701-4(c).
"Ground Lease": With respect to any Serviced 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 No. 1.
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage
Loan Schedule as belonging to Loan Group No. 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants,
chemicals, wastes, or substances, including, without limitation,
those so
identified pursuant to CERCLA or any other federal, state or local
environmental
related laws and regulations now existing or hereafter enacted, and
specifically
including, without limitation, asbestos and asbestos-containing
materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and
petroleum products
and urea formaldehyde.
"Holder": A Certificateholder.
"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 (and, with respect to the [ABC] Mortgage Loan, the
Class
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[XXX] Representative and, with respect to any A/B Loan Combination,
the related
B-Noteholder(s)), the Trustee, the Fiscal Agent 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
(or, with respect to the [ABC] Mortgage Loan, the Class [XXX]
Representative
and, with respect to any A/B Loan Combination, the related
B-Noteholder(s)), the
Trustee, the Fiscal Agent or any Affiliate thereof, and (iii) is
not connected
with the Depositor, the Mortgage Loan Sellers, the Master Servicer,
the Special
Servicer, the Controlling Class Representative (or, with respect to
the [ABC]
Mortgage Loan, the [XXX] Representative and, with respect to any
A/B Loan
Combination, the related B-Noteholder(s)), the Trustee, the Fiscal
Agent or any
Affiliate thereof as an officer, employee, promoter, underwriter,
trustee,
partner, director or Person performing similar functions; provided,
however,
that a Person shall not fail to be Independent of the Depositor,
the Mortgage
Loan Sellers, the Master Servicer, the Special Servicer, the
Controlling Class
Representative (or, with respect to the [ABC] Mortgage Loan, the
Class [XXX]
Representative and, with respect to any A/B Loan Combination, the
related
B-Noteholder(s)), the Trustee, the Fiscal Agent 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 (or, with
respect to the [ABC] Mortgage Loan, the Class [XXX] Representative
and, with
respect to any A/B Loan Combination, the related B-Noteholder(s)),
the Trustee,
the Fiscal Agent or such 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.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to a REMIC Pool within the meaning of
Section 856(d)(3)
of the Code if such REMIC Pool 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 at no expense to the
Master
Servicer, the Special Servicer, the Trustee or the Trust Fund,
delivered to the
Trustee and the Master Servicer), so long as such REMIC Pool does
not receive or
derive any income from such Person; provided that the relationship
between such
Person and such REMIC Pool is at arm's length, all within the
meaning of
Treasury regulations section 1.856-4(b)(5), or 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 Administered 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
Administered 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 Administered REO Property to fail to qualify as
Rents from Real
Property.
"Initial Form 8-K Current Reports": As defined in Section 8.16.
"Initial Purchaser": Each of Citigroup Global Markets Inc. and
[____________________] or, in each case, its successor in interest.
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"Institutional Accredited Investor" or "IAI": An "accredited
investor"
as defined in any of paragraphs (1), (2), (3) and (7) of Rule
501(a) under the
Securities Act or any entity in which all of the equity owners come
within such
paragraphs.
"Insurance Policy": With respect to any Serviced 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 Serviced
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 (or, in the case of the
Outside Serviced
Mortgage Loan, in accordance with the servicing standard under the
Outside
Servicing Agreement).
"Insured Environmental Event": As defined in Section 3.07(d).
"Interest Accrual Period": With respect to each Class of Regular
Certificates, each Class X Component, the Class A-2FL REMIC II
Regular Interest,
each REMIC I Regular Interest and each Loan REMIC Regular Interest,
for 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, the Class X
Components, the
Class A-2FL REMIC II Regular Interest, the REMIC I Regular
Interests and the
Loan REMIC Regular Interests. For purposes of determining Class
A-2FL Interest
Distribution Amounts and Class A-2FL Floating Swap Payments, for
any
Distribution Date and any Class A-2FL Swap Payment Date related
thereto based
upon the confirmation under the Swap Agreement, the Interest
Accrual Period will
begin on and include the preceding Distribution Date (or, in the
case of the
first Distribution Date, will begin on and include the Closing
Date) and will
end on the calendar day immediately preceding the subject
Distribution Date;
provided that, if a Class A-2FL Distribution Conversion is in
effect with
respect to the subject Distribution Date, then the Interest Accrual
Period
applicable to the Class A-2FL Interest Distribution Amount for such
Distribution
Date will be the same as the Interest Accrual Period with respect
to the Class
A-2FL REMIC II Regular Interest for such Distribution Date.
"Interest Reserve Account": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) on behalf of
the
Certificateholders, which shall be entitled "[NAME OF TRUSTEE], as
Trustee, on
behalf of and in trust for the registered holders of [Insert name
of issuing
trust], Commercial Mortgage Pass-Through Certificates, Series
200_-___."
"Interest Reserve Amount": With respect to each Interest Reserve
Mortgage Loan and Interest Reserve REO Mortgage Loan for 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 Net
Mortgage
Rate on the related Stated Principal Balance as of the Due Date in
the month in
which such Distribution Date occurs (but prior to the application
of any amounts
owed on such Due Date), to the extent a Periodic Payment is
collected in respect
thereof as of the Determination Date immediately preceding such
Distribution
Date or a P&I Advance is made in respect thereof for such Due
Date as of such
Distribution Date.
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"Interest Reserve Mortgage Loan": Each Mortgage Loan that is an
Actual/360 Mortgage Loan.
"Interest Reserve REO Mortgage Loan": An REO Mortgage Loan that
relates to an Interest Reserve Mortgage Loan.
"Interested Person": The Depositor, any Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any B-Noteholder (but only
with respect
to the related A-Note Mortgage Loan), any Independent Contractor
hired by the
Special Servicer, any Holder of a Certificate or any Affiliate of
any such
Person.
"Internet Website": The Internet Websites maintained by the Trustee
and, if applicable, the Master Servicer and/or the Special
Servicer, which in
the case of the Trustee is initially located at
"[______________________]" or
such other address as provided by the Trustee to the parties hereto
from time to
time and, in the case of the Master Servicer and/or the Special
Servicer, shall
be located at such address provided by such person to the parties
hereto from
time to time.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Certificate": As of any date of determination, a
Certificate that is rated in one of the four highest generic rating
categories
by at least one Rating Agency.
"IRS": The Internal Revenue Service or any successor agency.
"Issue Price": With respect to each Class of Certificates, the
"issue
price" as defined in the Code and Treasury regulations promulgated
thereunder.
"[JKL] B-Note Loan": As defined in the Preliminary Statement
hereto.
"[JKL] Intercreditor Agreement": As defined in the Preliminary
Statement hereto.
"[JKL] Loan Combination": As defined in the Preliminary Statement
hereto.
"[JKL] Mortgage Loan": As defined in the Preliminary Statement
hereto.
"[JKL] Mortgaged Property": As defined in the Preliminary Statement
hereto.
"Late Collections": With respect to any Mortgage 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
Periodic Payment (other than a Balloon Payment) or an Assumed
Periodic Payment
in respect of such Mortgage Loan due or deemed due on a Due Date in
a previous
Collection Period, and not previously recovered. With respect to
any REO
Mortgage Loan, all amounts received in connection with the related
REO 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 Periodic Payment (other
than a Balloon
Payment) or an Assumed Periodic Payment in respect of the
predecessor Mortgage
Loan or of an Assumed Periodic Payment in respect of such REO
Mortgage Loan due
or deemed due on a Due Date in a previous Collection Period and not
previously
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recovered. Late Collections with respect to the Outside Serviced
Mortgage Loan
will be allocated to such Mortgage Loan as provided in the related
Co-Lender
Agreement, and to the extent not inconsistent with the related
Co-Lender
Agreement, as provided in this Agreement.
"LIBOR": The rate specified in Section 1.03(a) or the rate
calculated
by the Trustee in accordance with Section 1.03(b), as applicable
under the
circumstances.
"LIBOR Business Day": Any day on which commercial banks are open
for
general business (including dealings in foreign exchange and
foreign currency
deposits) in London, England.
"LIBOR Determination Date": For purposes of calculating LIBOR in
any
particular calendar month subsequent to ___________ 200_, the
second LIBOR
Business Day prior to the Distribution Date in such calendar month;
provided
that, to the extent that the calculation of LIBOR in accordance
with Section
1.03(b) requires a determination made as of New York City time, the
subject
LIBOR Determination Date must also be one on which commercial banks
are open for
general business (including dealings in foreign exchange and
foreign currency
deposits) in London, England and New York, New York.
"Litigation Control": As defined in Section 3.19(e).
"Liquidation Event": With respect to any Mortgage Loan or B-Note
Loan,
any of the following events: (i) such Mortgage Loan or B-Note Loan
is paid in
full; (ii) a Final Recovery Determination is made with respect to
such Mortgage
Loan or B-Note Loan; (iii) in the case of a Mortgage Loan, such
Mortgage Loan is
(A) repurchased or replaced by a Mortgage Loan Seller pursuant to
the applicable
Mortgage Loan Purchase Agreement, (B) purchased by the Master
Servicer, the
Special Servicer or the Majority Controlling Class
Certificateholder pursuant to
Section 9.01, or (C) other than the Outside Serviced Mortgage Loan,
purchased by
the Majority Controlling Class Certificateholder, the Special
Servicer or any
assignee of the foregoing pursuant to Section 3.18; (iv) in the
case of the
[ABC] Mortgage Loan, such Mortgage Loan is purchased by the
Majority Class [XXX]
Certificateholder(s) pursuant to Section 6.14; (v) in the case of a
Mortgage
Loan that is a part of the Loan Combination, such Mortgage Loan is
purchased by
a related Non-Trust Loan Noteholder pursuant to the related
Co-Lender Agreement;
(vi) in the case of the Outside Serviced Mortgage Loan, such
Mortgage Loan is
purchased by the Majority Controlling Class Certificateholder upon
exercising
its fair value purchase option in connection with Section 3.18 of
this Agreement
and the Outside Servicing Agreement; or (vii) such Mortgage Loan or
B-Note Loan
is purchased by any related mezzanine lender pursuant to any
applicable
intercreditor, co-lender or similar agreement. With respect to any
REO Property
(and the related REO Loan(s)), 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
Controlling Class Certificateholder pursuant to Section 9.01; or
(iii) such REO
Property is sold pursuant to Section 3.18 (or, if it relates to the
Outside
Serviced Mortgage Loan, pursuant to the Outside Servicing
Agreement).
"Liquidation Fee": With respect to each Specially Serviced Loan and
each REO Loan that relates to an Administered REO Property, 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": 1.0%.
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"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 or
B-Note Loan,
through trustee's sale, foreclosure sale, REO Disposition or
otherwise (which
does not include voluntary Principal Prepayments), 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
Controlling Class Certificateholder, the Special Servicer or any
assignee
thereof pursuant to Section 3.18 or, if applicable, the purchase of
the Outside
Serviced Mortgage Loan by the Majority Controlling Class
Certificateholder upon
exercising its fair value purchase option in connection with
Section 3.18 of
this Agreement and the Outside Servicing Agreement; (v) the
repurchase or
replacement 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 Controlling Class Certificateholder pursuant to Section
9.01; (vii) the
purchase of a Mortgage Loan that is part of a Loan Combination by a
related
Non-Trust Loan Noteholder pursuant to a related Co-Lender
Agreement; (viii) the
purchase of a Mortgage Loan or B-Note Loan by a mezzanine lender
pursuant to any
applicable intercreditor, co-lender or similar agreement; (ix) the
purchase of
the [ABC] Mortgage Loan by the Majority Class [XXX]
Certificateholder(s); or (x)
except for purposes of Section 3.11, any [DEF] or [GHI] Threshold
Event
Collateral transferred to the Certificate Account, subject to and
in accordance
with the terms of Section 6.12(f) or 6.13(f), as applicable, to
cover losses and
expenses with respect to the [DEF] Mortgage Loan or the [GHI]
Mortgage Loan, as
applicable, or any successor REO Mortgage Loan with respect
thereto.
"Loan Combination": The [MNO] Loan Combination or any A/B Loan
Combination, as applicable.
"Loan Group": Either Loan Group No. 1 or Loan Group No. 2, as
applicable.
"Loan Group No. 1": Collectively, all of the Mortgage Loans that
are
Group 1 Mortgage Loans and any successor REO Mortgage Loans with
respect
thereto.
"Loan Group No. 1 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the related Net
Available
Distribution Amount attributable to Loan Group No. 1.
"Loan Group No. 1 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the related Net
Principal
Distribution Amount attributable to Loan Group No. 1.
"Loan Group No. 2": Collectively, all of the Mortgage Loans that
are
Group 2 Mortgage Loans and any successor REO Mortgage Loans with
respect
thereto.
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"Loan Group No. 2 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the related Net
Available
Distribution Amount attributable to Loan Group No. 2.
"Loan Group No. 2 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the related Net
Principal
Distribution Amount attributable to Loan Group No. 2.
"Loan REMIC": The segregated pool of assets consisting of: (i) the
[ABC] Mortgage Loan, together with all documents included in the
related
Mortgage File and any related Escrow Payments and Reserve Funds;
(ii) all
amounts relating to the [ABC] Mortgage Loan or any successor REO
Mortgage Loan
with respect thereto held from time to time in the Interest Reserve
Account, the
Certificate Account, the Distribution Account, the Gain-on-Sale
Reserve Account
and the Pool REO Account; (iii) any REO Property acquired in
respect of the
[ABC] Mortgage Loan; (iv) the rights of the Depositor under the
[____________________] Mortgage Loan Purchase Agreement with
respect to the
[ABC] Mortgage Loan; and (v) the rights of the mortgagee under all
Insurance
Policies with respect to the [ABC] Mortgage Loan.
"Loan REMIC Deferred Interest": The amount by which interest
distributable to REMIC I with respect to any Loan REMIC Regular
Interest is
reduced by the amount of Mortgage Deferred Interest allocable to
such Loan REMIC
Regular Interest on any Distribution Date.
"Loan REMIC Principal Balance": The principal balance of a Loan
REMIC
Regular Interest as of any date of determination. As of the Closing
Date, the
Loan REMIC Principal Balance of Loan REMIC Regular Interest [XXX]-I
shall equal
$____________ and the Loan REMIC Principal Balance of Loan REMIC
Regular
interest [XXX]-II shall equal $____________. On each Distribution
Date, the Loan
REMIC Principal Balance of each Loan REMIC Regular Interest shall
be permanently
reduced by all distributions of principal deemed to have been made
thereon on
such Distribution Date pursuant to Section 4.01(j), and shall be
further
permanently reduced by all Realized Losses and Additional Trust
Fund Expenses
deemed allocated thereto on such Distribution Date pursuant to
Section 4.04(c).
On any Distribution Date, the Loan REMIC Principal Balance of any
Loan REMIC
Regular Interest shall be increased by any Loan REMIC Deferred
Interest with
respect thereto for such Distribution Date.]
"Loan REMIC Regular Interest": Either of the two uncertificated
"regular interests" (within the meaning of Section 860G(a)(1) of
the Code) in
the Loan REMIC issued hereunder, as described (and bearing the
designations
specified) in the Preliminary Statement hereto.
"Loan REMIC Remittance Rate": With respect to each Loan REMIC
Regular
Interest, for any Distribution Date, the Net Mortgage Pass-Through
Rate with
respect to the [ABC] Mortgage Loan or any successor REO Mortgage
Loan with
respect thereto for such Distribution Date.
"Loan-to-Value Ratio": With respect to any Serviced 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 Serviced Loan
(plus, in the
case of a B-Note Loan, the current principal amount of the related
A-Note
Mortgage Loan), and the denominator of which is the Appraised Value
of the
related Mortgaged Property.
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"Lockout Period": With respect to any Mortgage Note that prohibits
the
Mortgagor from prepaying such Serviced Loan until a date specified
in such
Mortgage Note, the period from the Closing Date until such
specified date.
"Majority Class [XXX] Certificateholder(s)": As of any date of
determination, any Holders (or, in the case of a Class of
Book-Entry
Certificates, Certificate Owners) of Certificates entitled to
greater than 50%
of the Voting Rights allocated to the Class [XXX] Certificates.
"Majority Controlling Class Certificateholder": As of any date of
determination, any single Holder (or, in the case of a Class of
Book-Entry
Certificates, Certificate Owner) of Certificates (other than any
Holder (or, in
the case of a Class of Book-Entry Certificates, Certificate Owner)
that is an
Affiliate of the Depositor or a 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 (or, in the case of a Class of
Book-Entry
Certificates, Certificate Owner) of Certificates entitled to
greater than 50% of
the Voting Rights allocated to such Class, then the Majority
Controlling Class
Certificateholder shall be the single Holder (or, in the case of a
Class of
Book-Entry Certificates, Certificate Owner) of Certificates with
the largest
percentage of Voting Rights allocated to such Class. With respect
to determining
the Majority Controlling Class Certificateholder, the Senior Class
A
Certificates shall be deemed to be a single Class of Certificates,
with the
applicable Voting Rights allocated among the Holders (or, in the
case of a Class
of Book-Entry Certificates, Certificate Owners) of such
Certificates in
proportion to the respective Certificate Principal Balances of such
Certificates
as of such date of determination.
"Master Servicer": [Insert name of initial Master Servicer], its
successor in interest or any successor master servicer appointed as
herein
provided (including the Trustee as successor pursuant to Section
7.02).
"Master Servicer Reportable Event": Any of the following events,
conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that is
material to the Subject Securitization Transaction, including, for
example,
a servicing agreement with a Servicer contemplated by Item
1108(a)(3) of
Regulation AB, but only if the Master Servicer or any Servicing
Representative of the Master Servicer is a party to such agreement
or has
entered into such agreement on behalf of the Trust;
(ii) the termination of a definitive agreement that is material to
the
Subject Securitization Transaction (otherwise than by expiration of
the
agreement on its stated termination date or as a result of all
parties
completing their obligations under such agreement), but only if the
Master
Servicer or any Servicing Representative of the Master Servicer is
a party
to such agreement or has entered into such agreement on behalf of
the
Trust;
(iii) the appointment of a receiver, fiscal agent or similar
officer
for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or
in any other proceeding under state or federal law in which a court
or
governmental authority has assumed jurisdiction over substantially
all of
the assets or business of any Material Debtor, including where such
jurisdiction has been assumed by leaving the existing directors and
officers in possession but subject to the supervision and orders of
a court
or governmental authority, but only if the subject
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Material Debtor is (A) the Master Servicer, (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any
Significant
Obligor with respect to a Performing Serviced Mortgage Loan;
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or
governmental
authority having supervision or jurisdiction over substantially all
of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Master Servicer, (B) any Servicing
Representative of the Master Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any
Significant
Obligor with respect to a Performing Serviced Mortgage Loan;
(v) any resignation, removal, replacement or substitution of (A)
the
Master Servicer or (B) any Servicing Representative of the Master
Servicer
that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation
AB;
(vi) any appointment of (A) a new Master Servicer or (B) any new
Servicing Representative of the Master Servicer that constitutes a
Servicer
contemplated by Item 1108(a)(2) of Regulation AB;
(vii) any nonpublic disclosure, by the Master Servicer or any
Servicing Representative of the Master Servicer, with respect to
the
Subject Securitization Transaction (other than disclosure required
pursuant
to this Agreement) that is required to be disclosed by Regulation
FD (17
C.F.R. 243.100 through 243.103);
(viii) any other information of importance to Certificateholders
(determined by the Master Servicer in accordance with the Servicing
Standard) that (A) is not otherwise required to be included in the
Distribution Date Statement or any other report to be delivered or
otherwise made available to Certificateholders hereunder, (B) the
Master
Servicer has determined, in accordance with the Servicing Standard,
could
have an adverse effect on payments to any Class of
Certificateholders, and
(C) is directly related to a Performing Serviced Mortgage Loan;
(ix) the commencement or termination of, or any material
developments
regarding, any legal proceedings pending against any Material
Litigant, or
of which any property of a Material Litigant is the subject, or any
threat
by a governmental authority to bring any such legal proceedings,
that are
material to Certificateholders, but only if the Master Servicer is
controlling the subject litigation or if the subject Material
Litigant is
(A) the Master Servicer, (B) any Servicing Representative of the
Master
Servicer that constitutes a Servicer contemplated by Item
1108(a)(3) of
Regulation AB or (C) any Significant Obligor with respect to a
Performing
Serviced Mortgage Loan;
(x) the receipt by or on behalf of the Master Servicer or any
Servicing Representative of the Master Servicer of any updated
financial
statements, balance sheets, rent rolls or other financial
information
regarding a Significant Obligor with respect to a Performing
Serviced
Mortgage Loan;
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement, whether the Master Servicer has become an affiliate (as
defined
in Rule 405 of the Securities Act) of any of (A) the Trust, (B) the
Depositor, (C) a Mortgage Loan Seller, (D) the Trustee, (E) the
Special
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Servicer, (F) any Servicing Representative of the Master Servicer
that
constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB or
(G) any Significant Obligor;
(xii) to the extent not otherwise disclosed in the Prospectus
Supplement, any business relationship, agreement, arrangement,
transaction
or understanding contemplated by Item 1119(b) of Regulation AB
between the
Depositor, a Mortgage Loan Seller or the Trust, on the one hand,
and the
Master Servicer or any Servicing Representative of the Master
Servicer, on
the other hand; and
(xiii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the
Subject
Securitization Transaction or the Mortgage Loans contemplated by
Item
1119(c) of Regulation AB between the Depositor, a Mortgage Loan
Seller or
the Trust, on the one hand, and the Master Servicer or any
Servicing
Representative of the Master Servicer, on the other hand.
"Master Servicing Fee": With respect to each Mortgage Loan (and any
REO Mortgage Loan with respect thereto), the fee payable to the
Master Servicer
pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to: (a) each Mortgage
Loan
(and any successor REO Mortgage Loan with respect thereto), the
percentage set
forth under the column "Master Servicing Fee Rate" on the Mortgage
Loan
Schedule; and (b) each B-Note Loan (or any successor REO B-Note
Loan with
respect thereto), 0.0% per annum. Notwithstanding the foregoing,
for purposes of
determining the amount of servicing compensation actually payable
to the Master
Servicer in respect of the [MNO] Mortgage Loan pursuant to Section
3.11(a), the
Master Servicing Fee Rate shall be ______% per annum.
"Material Debtor": Any of the following:
(i) the Trust;
(ii) each of the Mortgage Loan Sellers;
(iii) each of the parties to this Agreement;
(iv) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB;
(v) any Significant Obligor;
(vi) any Enhancement/Support Provider; and
(vii) any other material party contemplated by Item 1100(d)(1) of
Regulation AB relating to the Subject Securitization Transaction.
"Material Litigant": Any of the following:
(i) the Trust;
(ii) each of the Mortgage Loan Sellers;
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(iii) each of the parties to this Agreement;
(iv) any Servicing Representative that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB;
(v) any originator of Trust Mortgage Loans contemplated by Item
1110(b) of Regulation AB; and
(vi) any other party contemplated by Item 1100(d)(1) of Regulation
AB
relating to the Subject Securitization Transaction.
"[MNO] Co-Lender Agreement": As defined in the Preliminary
Statement
hereto.
"[MNO] Loan Combination": As defined in the Preliminary Statement
hereto.
"[MNO] Mortgage Loan": As defined in the Preliminary Statement
hereto.
"[MNO] Mortgaged Properties": As defined in the Preliminary
Statement
hereto.
"[MNO] Non-Trust Loans": As defined in the Preliminary Statement
hereto.
"[MNO] Pari Passu Non-Trust Loans": As defined in the Preliminary
Statement hereto.
"[MNO] Subordinate Non-Trust Loans": As defined in the Preliminary
Statement hereto.
"Money Term": With respect to any Serviced 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 Serviced 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 Serviced Loan,
the
amount of any interest accrued thereon at the related Mortgage Rate
(other than
Additional Interest) that, by virtue of a modification, is added to
the
outstanding principal balance of such Serviced Loan instead of
being payable on
the related Due Date on which it would otherwise have been due.
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"Mortgage File":
(a) With respect to any Serviced Mortgage Loan and, in the case of
each A/B Loan Combination, also with respect to each B-Note Loan
that is
part of such Loan Combination, the following documents collectively
(which,
in the case of each A/B Loan Combination, except for the Mortgage
Notes
referred to in clause (a)(i) of this definition and any
modifications
thereof referred to in clause (a)(vi) of this definition, relate to
the
entire such Loan Combination):
(i)
either (A) in the case of any Serviced Mortgage Loan
(including any A-Note Mortgage Loan), 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 "[Insert name of
initial Trustee], as trustee for the registered holders of
[Insert name of issuing trust], Commercial Mortgage
Pass-Through Certificates, Series 200_-___", or in blank (or a
lost note affidavit and indemnity with a copy of such Mortgage
Note attached thereto) or (B) in the case of any B-Note Loan,
a copy of the executed Mortgage Note;
(ii)
an original or a 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 a 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 and, if delivered in
blank, the name of the assignee), of (A) the Mortgage, (B) any
related Assignment of Leases (if such item is a document
separate from the Mortgage) and (C) any other recorded
document relating to the Mortgage Loan otherwise included in
the Mortgage File, in favor of "[Insert name of initial
Trustee], as trustee for the registered holders of [Insert
name of issuing trust], Commercial Mortgage Pass-Through
Certificates, Series 200_-___" (and, in the case of an A/B
Loan Combination, also on behalf of the related
B-Noteholder(s)), 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 "[Insert name of initial
Trustee], as trustee for the registered holders of [Insert
name of issuing trust], Commercial Mortgage Pass-Through
Certificates, Series 200_-___" (and, in the case of an A/B
Loan Combination, also on behalf of the related
B-Noteholder(s)), or in blank;
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(vi)
originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances
where the terms or provisions of the Mortgage or Mortgage Note
have been consolidated or modified or the subject Serviced
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 pro forma policy or marked
version of the policy that has been executed by an authorized
representative of the title company 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 reasonably satisfactory to the Depositor of
any prior UCC Financing Statements in favor of the originator
of the subject Serviced Loan or in favor of any assignee prior
to the Trustee (but only to the extent the related Mortgage
Loan Seller had possession of such UCC Financing Statements
when it was to deliver the subject Mortgage File on or 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 Financing
Statement assignment, in form suitable for filing in favor of
[Insert name of initial Trustee], as trustee for the
registered holders of [Insert name of issuing trust],
Commercial Mortgage Pass-Through Certificates, Series 200_-___
(and, in the case of any A/B Loan Combination, also on behalf
of the related B-Noteholder(s)), as assignee, or in blank;
(ix)
an original or a copy of any (A) Ground Lease and ground
lessor estoppel, (B) loan guaranty or indemnity, (C) secured
creditor impaired property environmental insurance policy or
(D) lease enhancement policy;
(x)
any intercreditor, co-lender or similar agreement relating to
permitted debt of the Mortgagor; and
(xi)
copies of any loan agreement, escrow agreement, security
agreement or letter of credit relating to a Mortgage Loan; and
(b) with respect to the Outside Serviced Mortgage Loan, the
following
documents collectively:
(i)
the original executed Mortgage Note for such Mortgage Loan,
endorsed (without recourse, representation or warranty,
express or implied) to the order of "[Insert name of initial
Trustee], as trustee for the registered holders of [Insert
name of issuing trust], Commercial Mortgage Pass-Through
Certificates, Series 200_-___" or in blank, and further
showing a complete, unbroken chain of endorsement from the
originator (if such originator is other than the related
Mortgage Loan Seller) (or, alternatively, if the original
executed Mortgage Note has been lost, a lost note affidavit
and indemnity with a copy of such Mortgage Note);
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(ii)
a copy of the executed related Co-Lender Agreement; and
(iii)
a copy of the executed Outside Servicing Agreement;
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
(a)(vi), (a)(ix) (solely with respect to any guaranty), (a)(x) and
(a)(xi) of
this definition, shall be deemed to include only such documents to
the extent
the Trustee or Custodian has actual knowledge of their existence.
"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 or otherwise held
on behalf of
the Trust, including, in the case of the Outside Serviced Mortgage
Loan, any
such documents held by or on behalf of the related Non-Trust Loan
Noteholders.
"Mortgage Loan Purchase Agreement": Each of the Citigroup Mortgage
Loan Purchase Agreement, the [____________________] Mortgage Loan
Purchase
Agreement, the [______________________] Mortgage Loan Purchase
Agreement and the
[______________________] Mortgage Loan Purchase Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund attached
hereto as
Schedule I and 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 Mortgage Rate as of the Cut-off Date;
(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 Mortgage 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;
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(x)
the Master Servicing Fee Rate;
(xi)
whether such Mortgage Loan is an ARD Mortgage Loan and if so
the Anticipated Repayment Date and Additional Interest Rate
for such ARD Mortgage 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 Mortgage
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 grace days after the Due Date until Periodic
Payments incur late payment charges;
(xxi)
the number of units or leasable square feet at the Mortgaged
Property; and
(xxii)
whether the Mortgage Loan is in Loan Group No. 1 or Loan Group
No. 2.
"Mortgage Loan Seller": Citigroup, [_____________________________],
[______________________] or [______________________], as
applicable.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or B-Note 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
REO
Mortgage Loans. None of the B-Note Loans and/or REO B-Note Loans
shall
constitute part of the Mortgage Pool.
"Mortgage Rate": With respect to (i) any Mortgage Loan or B-Note
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 or B-Note
Loan from time
to time in accordance with the related Mortgage Note and applicable
law; (ii)
any Mortgage Loan or B-Note 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 or B-Note Loan, as applicable, had
remained
outstanding.
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"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.
"Net Available Distribution Amount": With respect to any
Distribution
Date, the Available Distribution Amount for such Distribution Date,
reduced (to
not less than zero) by (i) the Class [XXX] Available Distribution
Amount for
such Distribution Date and (ii) the total amount of reimbursements
to the
Majority Class [XXX] Certificateholder(s) on such Distribution Date
pursuant to
Section 4.01(j).
"Net Cash Flow" or "NCF": As defined in and determined in
accordance
with the provisions of Exhibit E attached hereto.
"Net Investment Earnings": With respect to (i) the Certificate
Account, any Servicing Account, any Reserve Account, any REO
Account and any A/B
Custodial Account for any Collection Period and (ii) the
Distribution Account,
the Interest Reserve Account, the Additional Interest Account, the
Floating Rate
Account or the Gain-on-Sale Reserve Account (if any) for any
Distribution Date,
the amount, if any, by which the aggregate of all interest and
other income
realized during the subject Collection Period, with respect to any
of the
accounts described in clause (i) above, or during the one-month
period ending on
the subject Distribution Date and beginning immediately following
the preceding
Distribution Date (or, in the case of the initial Distribution
Date, beginning
on the Closing Date), with respect to any of the accounts described
in clause
(ii) above, on funds held in such accounts, exceeds the aggregate
of all losses,
if any, incurred during the subject Collection Period with respect
to any of the
accounts described in clause (i) above, or during the one-month
period ending on
the subject Distribution Date and beginning immediately following
the preceding
Distribution Date (or, in the case of the initial Distribution
Date, beginning
on the Closing Date), with respect to any of 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 Reserve Account, any REO Account and any
A/B
Custodial Account for any Collection Period and (ii) the
Distribution Account,
the Interest Reserve Account, the Additional Interest Account, the
Floating Rate
Account or the Gain-on-Sale Reserve Account (if any) for any
Distribution Date,
the amount by which the aggregate of all losses, if any, incurred
during the
subject Collection Period, with respect to any of the accounts
described in
clause (i) above, or during the one-month period ending on the
subject
Distribution Date and beginning immediately following the preceding
Distribution
Date (or, in the case of the initial Distribution Date, beginning
on the Closing
Date) with respect to any of the accounts described in clause (ii)
above, in
connection with the investment of funds held in such account
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in accordance with Section 3.06, exceeds the aggregate of all
interest and other
income realized during the subject Collection Period, with respect
to any of the
accounts described in clause (i) above, or during the one-month
period ending on
the subject Distribution Date and beginning immediately following
the preceding
Distribution Date (or, in the case of the initial Distribution
Date, beginning
on the Closing Date) with respect to any of the accounts described
in clause
(ii) above, in connection with the investment of such funds in
accordance with
Section 3.06.
"Net Mortgage Pass-Through Rate":
(A) With respect to any Mortgage Loan (or any successor REO
Mortgage
Loan with respect thereto) that accrues (or is deemed to accrue)
interest
on a 30/360 Basis, for any Distribution Date, an annual rate equal
to the
Net Mortgage Rate for such Mortgage Loan in effect as of the
Closing Date
(without regard to any modification, waiver or amendment of the
terms of
such Mortgage Loan subsequent to the Closing Date); and
(B) With respect to any Mortgage Loan (or any successor REO
Mortgage
Loan with respect thereto) that accrues (or is deemed to accrue)
interest
on an Actual/360 Basis, for any Distribution Date, an annual rate
equal to
the product of (1) 12, times (2) a fraction, expressed as a
percentage, the
numerator of which fraction is, subject to adjustment as described
below in
this definition, an amount of interest equal to the product of (a)
the
number of days in the calendar month preceding the month in which
such
Distribution Date occurs, multiplied by (b) the Stated Principal
Balance of
such Mortgage Loan (or such successor REO Mortgage Loan)
immediately
preceding such Distribution Date, multiplied by (c) 1/360,
multiplied by
(d) the Net Mortgage Rate for such Mortgage Loan in effect as of
the
Closing Date (without regard to any modification, waiver or
amendment of
the terms of such Mortgage Loan subsequent to the Closing Date),
and the
denominator of which fraction is the Stated Principal Balance of
such
Mortgage Loan (or such successor REO Mortgage Loan) immediately
preceding
such Distribution Date.
Notwithstanding the foregoing, if the subject Distribution Date
occurs
during January, except during a leap year, or February of any year
subsequent to
200_, then the amount of interest referred to in the numerator of
the fraction
described in clause (B)(2) above will be decreased to reflect any
Interest
Reserve Amount with respect to the subject Mortgage Loan (or REO
Mortgage Loan)
transferred from the Distribution Account to the Interest Reserve
Account in
such calendar month. Furthermore, if the subject Distribution Date
occurs during
March of any year subsequent to 200_, then the amount of interest
referred to in
the numerator of the fraction described in clause (B)(2) above will
be increased
to reflect any Interest Reserve Amount(s) with respect to the
subject Mortgage
Loan (or REO Mortgage Loan) transferred from the Interest Reserve
Account to the
Distribution Account for distribution on such Distribution Date.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO
Mortgage Loan, as of any date of determination, a rate per annum
equal to the
related Mortgage Rate minus (i) the applicable Master Servicing Fee
Rate and
(ii) in the case of the Outside Serviced Mortgage Loan or any
successor REO
Mortgage Loan with respect thereto, the applicable Outside
Servicing Fee Rate;
and, with respect to any B-Note Loan or REO B-Note Loan, as of any
date of
determination, a per annum rate equal to the related Mortgage Rate
minus any
applicable Master Servicing Fee Rate.
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"Net Principal Distribution Amount": With respect to any
Distribution
Date, the Principal Distribution Amount for such Distribution Date,
reduced (to
not less than zero) by the Class [XXX] Principal Distribution
Amount for such
Distribution Date.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously
made or
proposed to be made in respect of any Mortgage Loan or REO Mortgage
Loan by the
Master Servicer, the Trustee or the Fiscal Agent, as the case may
be, that, as
determined (in accordance with Section 4.03(c)) by the Master
Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable,
in accordance
with the Servicing Standard, in the case of the Master Servicer and
the Special
Servicer, the standard of care set forth in Section 8.01(a), in the
case of the
Trustee, or in the Fiscal Agent's reasonable good faith judgment,
in the case of
the Fiscal Agent, will not be ultimately recoverable (together with
any accrued
and unpaid interest thereon) from Late Collections, Insurance
Proceeds or
Liquidation Proceeds, or any other recovery on or in respect of
such Mortgage
Loan or REO Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously
made or proposed to be made in respect of a Serviced Loan or REO
Property by the
Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, as the
case may be, that, as determined (in accordance with Section
3.03(e)) by the
Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, as
applicable, in accordance with the Servicing Standard, in the case
of the Master
Servicer and the Special Servicer, the standard of care set forth
in Section
8.01(a), in the case of the Trustee, or in the Fiscal Agent's
reasonable good
faith judgment, in the case of the Fiscal Agent, will not be
ultimately
recoverable (together with any accrued and unpaid interest thereon)
from late
collections, Insurance Proceeds, Liquidation Proceeds, or any other
recovery on
or in respect of such Serviced Loan or REO Property.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X, Class F, Class G, Class H, Class J,
Class K, Class
L, Class M, Class N, Class O, Class P, Class Q, Class [XXX], Class
Y or Class R
Certificate.
"Non-Trust Loan": Any mortgage loan that is part of a Loan
Combination
but is not included in the Trust Fund. The Non-Trust Loans consist
of the [DEF]
B-Note Loans, the [MNO] Non-Trust Loans, the [GHI] B-Note Loans and
the [JKL]
B-Note Loan.
"Non-Trust Loan Noteholder": The holder of the promissory note for
a
Non-Trust Loan.
"Non-United States Tax Person": Any Person other than a United
States
Tax 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 any REMIC Pool as a REMIC; (b) the qualification
of any Grantor
Trust as a grantor trust; (c) compliance with the REMIC Provisions
or the
Grantor Trust Provisions or (d) the resignation
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of the Master Servicer or 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 Notional Amount": With respect to the Class X
Certificates, the Original Class X Notional Amount.
"Original Class Principal Balance": With respect to any Class of
Principal Balance Certificates (other than the Class A-2FL
Certificates) or the
Class A-2FL REMIC II Regular Interest, the initial Class Principal
Balance
thereof as of the Closing Date, in each case as specified in the
Preliminary
Statement; and, with respect to the Class A-2FL Certificates, the
initial Class
Principal Balance thereof as of the Closing Date equal to the
Original Class
Principal Balance of the Class A-2FL REMIC II Regular Interest.
"Original Class X Notional Amount": $____________.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Outside Administered REO Property": Any REO Property relating to
the
Outside Serviced Loan Combination.
"Outside Master Servicer": The master servicer under the Outside
Servicing Agreement.
"Outside Serviced Loan Combination": The [MNO] Loan Combination.
"Outside Serviced Mortgage Loan": The [MNO] Mortgage Loan.
"Outside Servicer": The Outside Master Servicer or the Outside
Special
Servicer, as applicable.
"Outside Servicer Default": An "Event of Default" on the part of an
Outside Servicer under the Outside Servicing Agreement.
"Outside Servicing Agreement": As defined in the Preliminary
Statement
hereto.
"Outside Servicing Fee": With respect to the Outside Serviced
Mortgage
Loan or any successor REO Mortgage Loan with respect thereto, the
monthly fee,
comparable to the Master Servicing Fee hereunder and calculated at
the Outside
Servicing Fee Rate, that is payable to the Outside Master Servicer
(or, if
applicable, to the Outside Master Servicer and a primary servicer
in the
aggregate).
"Outside Servicing Fee Rate": ______% per annum in the case of the
Outside Serviced Mortgage Loan or any successor REO Mortgage Loan
with respect
thereto.
"Outside Special Servicer": The special servicer under the Outside
Servicing Agreement.
"Outside Trustee": The trustee under the Outside Servicing
Agreement.
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"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 Mortgage Loan,
any
advance made by the Master Servicer, the Trustee or the Fiscal
Agent pursuant to
Section 4.03, and in any event subject to Section 3.26.
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Pass-Through Rate": [With respect to:
(i)
the Class A-1 Certificates, for any Distribution Date, ______%
per annum;
(ii)
the Class A-1D Certificates, for any Distribution Date,
______3% per annum;
(iii)
the Class A-2FL REMIC II Regular Interest, for any
Distribution Date, a per annum rate equal to the lesser of (A)
______% and (B) the Weighted Average Net Mortgage Pass-Through
Rate for such Distribution Date;
(iv)
the Class A-2FX Certificates, for any Distribution Date, a per
annum rate equal to the lesser of (A) ______% and (B) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(v)
each Class of the Class A-3, Class A-SB, Class A-4, Class
A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class
E, Class F, Class G, Class H and Class J Certificates, for any
Distribution Date, a per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(vi)
each Class of the Class K, Class L, Class M, Class N, Class O,
Class P and Class Q Certificates, for any Distribution Date, a
per annum rate equal to the lesser of (A) ______% and (B) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(vii)
the Class [XXX] Certificates, for any Distribution Date, a per
annum rate equal to the Net Mortgage Pass-Through Rate with
respect to the [ABC] Mortgage Loan (or any successor REO
Mortgage Loan with respect thereto) for such Distribution
Date;
(viii)
the Class X Certificates, for any Distribution Date, the
weighted average of the Class X Strip Rates for the respective
Class X Components for such Distribution Date (weighted on the
basis of the respective Component Notional Amounts of such
Class X Components outstanding immediately prior to such
Distribution Date); and
(ix)
with respect to the Class A-2FL Certificates, (A) for any
Distribution Date with respect to which a Class A-2FL
Distribution Conversion does not exist, the per annum rate,
expressed as a percentage, equal to the applicable value of
LIBOR
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specified in or calculated in accordance with Section 1.03,
plus ______% per annum, and (B) for any Distribution Date with
respect to which a Class A-2FL Distribution Conversion does
exist, the Pass-Through Rate for the Class A-2FL REMIC II
Regular Interest for that Distribution Date.]
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Interest": With respect to any Mortgage Loan or B-Note
Loan
(or any successor REO Loan with respect thereto), 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 B-Note Loan (or such successor REO Loan) accrued at the
related Mortgage
Rate. Penalty Interest with respect to the Outside Serviced
Mortgage Loan will
be allocated to such Mortgage Loan as provided in the related
Co-Lender
Agreement, and to the extent not inconsistent with the related
Co-Lender
Agreement, as provided in this Agreement.
"Percentage Interest": With respect to any Regular Certificate or
Class A-2FL 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 Class Notional Amount, as the case may be, of the relevant
Class. With
respect to a Class R Certificate or Class Y 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 B-Note
Loan
as of any Due Date, the scheduled payment of principal and/or
interest
(exclusive of Additional Interest) on such Mortgage Loan or B-Note
Loan, as the
case may be, 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 or managed by
[Insert name
of initial Trustee] (or any successor 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. In addition, such obligations may not have a
rating from S&P with an "r" highlighter. 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;
-55-
(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, it may not have a
rating from S&P with an "r" highlighter and 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, it may not have a rating from S&P with an "r"
highlighter and 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. In addition, it may not have a
rating from S&P with an "r" highlighter and 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
-56-
Certificates, as evidenced in writing by the Rating Agencies)
and which seeks to maintain a constant net asset value. In
addition, it may not have a rating from S&P with an "r"
highlighter and 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 Class R Certificate
other
than a Disqualified Organization, a Plan, a Non-United States Tax
Person or a
United States Tax Person with respect to whom income on the Class R
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 Tax 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 Class R Certificateholder": As to any taxable year of
any
REMIC Pool, the Holder of Certificates holding the largest
Percentage Interest
of the Class R Certificates.
"[________]": [______________________] or its successor in
interest.
"[________] Mortgage Loan Purchase Agreement": That certain
mortgage
loan purchase agreement, dated as of ____________, between the
Depositor and
[________] and relating to the transfer of the [________] Mortgage
Loans to the
Depositor.
"[________] Mortgage Loans": Each of the Mortgage Loans transferred
and assigned to the Depositor pursuant to the [________] Mortgage
Loan Purchase
Agreement and each Qualified Substitute Mortgage Loan delivered in
replacement
thereof in accordance with this Agreement and the [________]
Mortgage Loan
Purchase Agreement.
"Pool 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
substantially as follows: "[NAME OF SPECIAL SERVICER], as Special
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Servicer for [NAME OF TRUSTEE], as Trustee, on behalf of and in
trust for the
registered holders of [Insert name of issuing trust], Commercial
Mortgage
Pass-Through Certificates, Series 200_-___."
"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 Mortgage Loan
is repaid on
its Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Serviced Loan
that
was subject to a Principal Prepayment in full or in part during any
Collection
Period, which Principal Prepayment was applied to such Serviced
Loan following
such Serviced Loan's Due Date in such Collection Period, the amount
of interest
(net of the related Master Servicing Fee and, if applicable, any
related Penalty
Interest and 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 Serviced Loan, to the
extent
collected (exclusive of any related Prepayment Premium or Yield
Maintenance
Charge actually collected).
"Prepayment Interest Shortfall": With respect to (a) any Serviced
Loan
that was subject to a Principal Prepayment in full or in part
during any
Collection Period, which Principal Prepayment was applied to such
Serviced Loan
prior to such Serviced 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 on the amount of such Principal Prepayment
during the period
commencing on the date as of which such Principal Prepayment was
applied to such
Serviced Loan and ending on the day immediately preceding such Due
Date,
inclusive (exclusive, however, of (i) any related Master Servicing
Fees that
would have been payable out of the uncollected interest and (ii)
any portion of
the uncollected interest that would have constituted Penalty
Interest and/or
Additional Interest); and (b) the Outside Serviced Mortgage Loan,
if it was
subject to a Principal Prepayment in full or in part made prior to
its Due Date
during any Collection Period, the amount of interest, to the extent
not
collected from the related Mortgagor or otherwise (without regard
to any
Prepayment Premium or Yield Maintenance Charge that may have been
collected),
that would have accrued at a rate per annum equal to the related
Mortgage Rate
(reduced by the Outside Servicing Fee Rate) on the amount of such
Principal
Prepayment during the period from the date to which interest was
paid by the
related Mortgagor to, but not including, such Due Date (exclusive
of any related
Master Servicing Fees that would have been payable out of such
uncollected
interest).
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield
Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in
connection with a Principal Prepayment.
"Primary Collateral": With respect to any Crossed Loan, that
portion
of the Mortgaged Property designated as directly securing such
Crossed Loan and
excluding any Mortgaged Property as to which the related lien may
only be
foreclosed upon by exercise of the cross-collateralization
provisions of such
Crossed Loan.
"Prime Rate": The "prime rate" published in the "Money Rates"
Section
of The Wall Street Journal, as such "prime rate" may change from
time to time.
If The Wall Street Journal ceases to publish the "prime rate," then
the Master
Servicer shall select an equivalent publication that publishes
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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 Balance Certificate": Any [Class A-1, Class A-1D, Class
A-2FL, Class A-2FX, Class A-3, Class A-SB, Class A-4, 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
[XXX]] Certificate.
"Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to:
(a) the aggregate of the principal portions of all Periodic
Payments
(other than Balloon Payments) and any Assumed Periodic 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 paid
by the
related Mortgagor during or prior to, or otherwise received during,
the
related Collection Period or advanced by the Master Servicer, the
Trustee
or the Fiscal Agent, as applicable, for such Distribution Date;
plus
(b) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period; plus
(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), net of any portion of such payment
that
represents a recovery of the principal portion of any Periodic
Payment
(other than a Balloon Payment) due, or the principal portion of any
Assumed
Periodic Payment deemed due, in respect of such Mortgage Loan on a
Due Date
during or prior to the related Collection Period and included as
part of
the Principal Distribution Amount for such Distribution Date or any
prior
Distribution Date pursuant to clause (a) above; plus
(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 Periodic Payment (other than a Balloon Payment) due, or of
the
principal portion of any Assumed Periodic Payment deemed due, in
respect of
the related Mortgage Loan on a Due Date during or prior to the
related
Collection Period and included as part of the Principal
Distribution Amount
for such Distribution Date or any prior Distribution Date pursuant
to
clause (a) above; plus
(e) with respect to any REO Properties, the aggregate of the
principal
portions of all Assumed Periodic Payments deemed due in respect of
the
related REO Mortgage Loans for their respective Due Dates occurring
during
the related Collection Period to the extent received (in the
-59-
form of REO Revenues or otherwise) during the related Collection
Period or
advanced with respect to such Distribution Date; plus
(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 Mortgage
Loans, in
each case net of any portion of such amounts that represents a
recovery of
the principal portion of any Periodic Payment (other than a Balloon
Payment) due, or of the principal portion of any Assumed Periodic
Payment
deemed due, in respect of the related REO Mortgage Loan or the
predecessor
Mortgage Loan on a Due Date during or prior to the related
Collection
Period and included as part of the Principal Distribution Amount
for such
Distribution Date or any prior Distribution Date pursuant to clause
(a) or
(e) above; plus
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Net Principal
Distribution
Amount for the immediately preceding Distribution Date, over the
aggregate
distributions of principal made on the Sequential Pay Certificates
(exclusive of the Class A-2FL Certificates) and the Class A-2FL
REMIC II
Regular Interest on such immediately preceding Distribution Date
pursuant
to Section 4.01; plus
(h) any amounts that were used to reimburse Nonrecoverable Advances
(including interest on such Nonrecoverable Advances) from principal
collections on the Mortgage Pool pursuant to Section 3.05(a) hereof
which
are subsequently recovered on the related Mortgage Loan or REO
Mortgage
Loan during the related Collection Period; less
(i) the amount of any reimbursements of Nonrecoverable Advances
(including interest on such Nonrecoverable Advances) that are paid
or
reimbursed from principal collections on the Mortgage Pool pursuant
to
Section 3.05(a) hereof with respect to such Distribution Date where
such
principal collections would have otherwise been included in the
Principal
Distribution Amount for such Distribution Date pursuant to any of
clauses
(a) through (f) above;
provided that, for the Final Distribution Date, the Principal
Distribution
Amount shall in no event be less than the aggregate Stated
Principal Balance of
the Mortgage Pool immediately prior to such Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor
on a Mortgage Loan or B-Note 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, any Certificate Owner,
any
party hereto, any Person identified to the Trustee or the Master
Servicer, as
applicable, as a prospective transferee of a Certificate or
interest therein (or
a licensed or registered investment adviser representing such
Person), any
Rating Agency, any Mortgage Loan Seller, any B-Noteholder, any
Underwriter or
any designee of the Depositor or any party hereto; provided that no
Certificate
Owner or prospective transferee of a Certificate or interest
therein (or a
licensed or registered investment adviser representing such Person)
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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 L-1 or Exhibit L-2, as
applicable, which
certification is available on the Trustee's Internet Website.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated _______________, 200_, as
supplemented by the Prospectus Supplement, relating to the
Registered
Certificates.
"Prospectus Supplement": The final prospectus supplement dated
____________, 200_ of the Depositor relating to the registration of
the
Registered Certificates under the Securities Act.
["[________]": [______________________] or its successor in
interest.]
["[________] Mortgage Loan Purchase Agreement": That certain
mortgage
loan purchase agreement, dated as of _______________, 200_, between
the
Depositor and [________] and relating to the transfer of the
[________] Mortgage
Loans to the Depositor.]
"[________] Mortgage Loans": Each of the Mortgage Loans transferred
and assigned to the Depositor pursuant to the [________] Mortgage
Loan Purchase
Agreement and each Qualified Substitute Mortgage Loan delivered in
replacement
thereof in accordance with this Agreement and the [________]
Mortgage Loan
Purchase Agreement.
"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
Property),
a cash price equal to the sum of (without duplication): (a) the
outstanding
principal balance of such Mortgage Loan (or the related REO
Mortgage Loan) as of
the date of purchase, (b) all accrued and unpaid interest on such
Mortgage Loan
(or the related REO Mortgage Loan) at the related Mortgage Rate
(other than
Additional Interest) to but not including the Due Date in the
Collection Period
of purchase plus any accrued and unpaid interest on P&I
Advances made with
respect to such Mortgage Loan (or the related REO Mortgage Loan),
(c) all
related and unreimbursed Servicing Advances plus any accrued and
unpaid interest
thereon, (d) any reasonable costs and expenses, including, but not
limited to,
the cost of any enforcement action (including reasonable legal fees
incurred in
respect of such action), incurred by the Master Servicer, the
Special Servicer,
the Trustee or the Trust Fund in connection with any purchase by a
Mortgage Loan
Seller (to the extent not included in clause (c) above) and (e) 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, and including, if applicable, any Liquidation Fee
payable to the
Special Servicer in respect of such Mortgage Loan pursuant to
Section 3.11(c));
provided that the Purchase Price shall not be reduced by any
outstanding P&I
Advance.
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"Qualified Institutional Buyer" or "QIB": A "qualified
institutional
buyer" as defined in 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 in writing by a company having such
a financial
strength or claims paying ability rating), 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
financial strength
or 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 (or,
with respect to
the required Moody's rating, if not rated by Moody's, then at least
"A-" by two
other nationally recognized statistical rating organizations (which
may include
S&P)) 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 a 30/360 Basis); (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
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no Controlling Class Representative then serving, by the Holders of
Certificates
representing a majority of the Voting Rights allocated to the
Controlling Class)
and (xv) not be substituted for a deleted Mortgage Loan if it would
result in
the termination of the REMIC status of any REMIC Pool or the
imposition of tax
on any REMIC Pool 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). 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 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 and
outstanding at the
time of the substitution. 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. A
Qualified
Substitute Mortgage Loan may not be substituted for the [ABC]
Mortgage Loan.
"Rated Final Distribution Date": With respect to the Principal
Balance
Certificates (other than [Class N, O, P, Q and [XXX]]
Certificates), the
Distribution Date in ____________. With respect to the [Class N, O,
P, Q and
[XXX]] Certificates, the Distribution Date in ____________.
"Rating Agency": Each of Moody's and S&P.
"Realized Loss": With respect to: (1) any defaulted Mortgage Loan
or
B-Note 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, B-Note
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)(c) of this
definition, all accrued
but unpaid interest on such Mortgage Loan, B-Note Loan or 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 Prepayment Premiums or
Yield Maintenance
Charges), minus (c) all payments and proceeds, if any, actually
received in
respect of, and allocable as interest on or principal of, such
Mortgage Loan,
B-Note Loan or REO Loan, as the case may be, during the Collection
Period in
which such Final Recovery Determination was made; (2) any defaulted
Mortgage
Loan or B-Note 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 or B-Note Loan, as the case may be, granted or agreed
to by the
Special Servicer pursuant to Section 3.20 (or, in the case of the
Outside
Serviced Mortgage Loan, by the applicable Outside Servicer pursuant
to the
Outside Servicing Agreement), the amount of such principal and/or
interest so
canceled; (3) any Mortgage Loan or B-Note 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 or B-Note
Loan, as the case may be, granted or agreed to by the Special
Servicer pursuant
to Section 3.20 (or, in the case of the Outside Serviced Mortgage
Loan, by the
applicable Outside Servicer pursuant to the Outside Servicing
Agreement), the
amount of the consequent reduction in the interest portion of each
successive
Periodic Payment due
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thereon (each such Realized Loss shall be deemed to have been
incurred on the
Due Date for each affected Periodic Payment); and (4) any 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 paid out of general
collections on the
Mortgage Pool.
"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.
"Reference Rate": With respect to any Distribution Date, the
applicable rate per annum set forth on Schedule IV hereto.
"Registered Certificate": Any [Class A-1, Class A-1D, Class A-2FL,
Class A-2FX, Class A-3, Class A-SB, Class A-4, Class A-1A, Class
A-M, Class A-J,
Class B, Class C, Class D and Class E] Certificate.
"Regular Certificate": Any Principal Balance Certificate (other
than a
Class A-2FL Certificate) or Class X Certificate.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. Sections 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 S": Regulation S under the Securities Act.
"Regulation S Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside of
the United
States in reliance on Regulation S, one or collectively more global
Certificates
of such Class registered in the name of the Depository or its
nominee, in
definitive, fully registered form without interest coupons, each of
which
Certificates bears a Regulation S Legend.
"Regulation S Legend": With respect to any Class of Book-Entry
Non-Registered Certificates offered and sold outside the United
States in
reliance on Regulation S, a legend generally to the effect that
such
Certificates may not be offered, sold, pledged or otherwise
transferred in the
United States or to a United States Securities Person prior to the
applicable
Regulation S Release Date, except pursuant to an exemption from the
registration
requirements of the Securities Act.
"Regulation S Release Date": With respect to any Class of
Book-Entry
Non-Registered Certificates offered and sold outside the United
States in
reliance on Regulation S, the date that is 40 days after the later
of (a) the
commencement of the offering of such Certificates to Persons other
than
distributors in reliance on Regulation S, and (b) the date of
closing of the
offering.
"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.
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"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"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) the
Loan REMIC Regular Interests; (ii) 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 (other than the [ABC] Mortgage Loan) received after
the Closing
Date (excluding all Additional Interest, if any, on such Mortgage
Loans),
together with all documents included in the related Mortgage Files
and any
related Escrow Payments and Reserve Funds; (iii) except to the
extent they are
part of the Loan REMIC, all amounts held from time to time in the
Interest
Reserve Account, the Certificate Account, the Distribution Account,
the
Gain-on-Sale Reserve Account, any Pool REO Account and any A/B
Custodial
Account; (iv) any REO Property acquired in respect of a Mortgage
Loan (other
than the [ABC] Mortgage Loan); (v) except to the extent they are
part of the
Loan REMIC, the rights of the Depositor under each of the Mortgage
Loan Purchase
Agreements with respect to the Mortgage Loans; (vi) the rights of
the mortgagee
under all Insurance Policies with respect to the Mortgage Loans
(other than the
[ABC] Mortgage Loan), in each case exclusive of the interest of any
B-Noteholder; and (vii) in the case of each Outside Serviced
Mortgage Loan, the
rights of the Depositor under the Outside Servicing Agreement;
provided that
REMIC I shall not include any B-Note Loan or any successor REO
B-Note Loan with
respect thereto or any payments or other collections of principal,
interest,
Prepayment Premiums, Yield Maintenance Charges or other amounts
collected on a
B-Note Loan or any successor REO B-Note Loan with respect thereto.
"REMIC I Deferred Interest": The amount by which interest
distributable to REMIC II with respect to any REMIC I Regular
Interest is
reduced by the amount of Mortgage Deferred Interest allocable to
such REMIC I
Regular Interest on any Distribution Date.
"REMIC I Principal Balance": The principal amount 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 amount specified as such in the Preliminary Statement hereto.
On each
Distribution Date, the REMIC I Principal Balance of each REMIC I
Regular
Interest shall be: (i) 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(i); (ii) 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 (iii) increased by any REMIC I
Deferred
Interest with respect thereto for such Distribution Date.
"REMIC I Regular Interest": Any of the ______ uncertificated
"regular
interests" (within the meaning of Section 860G(a)(1) of the Code)
in REMIC I
issued hereunder, as described (and bearing the designations
specified) in the
Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest, other than REMIC I Regular Interest [XXX], for any
Distribution Date,
an annual rate equal to the Weighted Average Net Mortgage
Pass-Through Rate for
such Distribution Date; and, with respect to REMIC I Regular
Interest [XXX], for
any Distribution Date, an annual rate equal to the Loan REMIC
Remittance Rate
with respect to Loan REMIC Regular Interest [XXX]-II for such
Distribution Date.
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"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests and all amounts deemed distributed
thereon from time
to time, 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
Certificates,
insofar as the Class R Certificates evidence the sole class of
residual
interests in REMIC II, with respect to which segregated pool of
assets a
separate REMIC election is to be made.
"REMIC II Certificate": Any [Class A-1, Class A-1D, Class A-2FX,
Class
A-3, Class A-SB, Class A-4, Class A-1A, Class A-M, Class A-J, Class
B, Class C,
Class D, Class E, Class X, Class F, Class G, Class H, Class J,
Class K, Class L,
Class M, Class N, Class O, Class P, Class Q, Class [XXX]]
Certificate or,
insofar as it represents a portion of the sole class of residual
interests in
REMIC II, any Class R Certificate.
"REMIC Pool": Each of REMIC I, REMIC II and the Loan REMIC.
"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": The Pool REO Account or any A/B REO Account, as
applicable.
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09 (or, in the case of any REO Property relating to an
Outside
Serviced Mortgage Loan, pursuant to the Outside Servicing
Agreement).
"REO B-Note Loan": The loan deemed for purposes hereof to succeed a
B-Note Loan and to be outstanding with respect to any A/B REO
Property. The REO
B-Note Loan shall be deemed to be outstanding for so long as the
related A/B REO
Property or any interest therein remains part of the Trust Fund
and, further, be
deemed to have the same terms and conditions as the predecessor
B-Note Loan
(such terms and conditions to be applied without regard to the
default on such
predecessor loan and the acquisition of the related REO Property as
part of the
Trust Fund). The REO B-Note 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 loan as
of the date of the related REO Acquisition. All amounts due and
owing, or deemed
to be due and owing, in respect of a B-Note Loan as of the date of
the related
REO Acquisition, shall be deemed to continue to be due and owing in
respect of a
successor REO B-Note Loan. The Master Servicer shall allocate
proceeds, revenues
and other collections received on or with respect to the related
A/B REO
Property to amounts due and owing, or deemed to be due and owing,
under the
subject REO B-Note Loan in accordance with the related A/B
Intercreditor
Agreement. Notwithstanding the foregoing, all amounts payable or
reimbursable to
the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent in
respect of a B-Note Loan as of the date of the related REO
Acquisition,
including, without limitation, any unpaid servicing compensation
and any
unreimbursed Servicing Advances, together with any interest accrued
and payable
to the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent in
respect of such Servicing Advances in accordance with Sections
3.03(d) and
4.03(d), shall continue to be payable
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or reimbursable to the Master Servicer, the Special Servicer, the
Trustee or the
Fiscal Agent, as the case may be, in respect of the REO B-Note Loan
pursuant to
Section 3.05(g) or, to the extent provided thereby, Section
3.05(a), as the case
may be.
"REO Disposition": The sale or other disposition of any REO
Property
pursuant to Section 3.18(h) (or, in the case of any REO Property
relating to an
Outside Serviced Mortgage Loan, pursuant to the Outside Servicing
Agreement).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": An REO Mortgage Loan or an REO B-Note Loan, as
applicable.
"REO Mortgage Loan": The Mortgage Loan deemed for purposes hereof
to
be outstanding with respect to each REO Property. Each REO Mortgage
Loan shall
be deemed to be outstanding for so long as the related REO Property
remains part
of the Trust Fund and deemed to provide for Periodic Payments of
principal
and/or interest equal to its Assumed Periodic 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 Mortgage 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 as of the date of the related REO Acquisition. All Periodic
Payments (other
than a Balloon Payment), Assumed Periodic 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 Mortgage Loan. In
addition,
Nonrecoverable Advances (including interest on such Nonrecoverable
Advances)
with respect to such REO Mortgage 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 Mortgage Loan (after provision for amounts to
be applied to
the payment of, or to be reimbursed to the Master Servicer, the
Special
Servicer, the Trustee or the Fiscal Agent 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, the
Trustee or the Fiscal Agent for other related Servicing Advances as
provided in
this Agreement) shall be treated: first, as a recovery of
Nonrecoverable
Advances (including interest on such Nonrecoverable Advance) with
respect to
such REO Mortgage 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; second, as a recovery of
accrued and unpaid
interest on such REO Mortgage Loan at the related Mortgage Rate
(net, in the
case of any successor REO Mortgage Loan in respect of the Outside
Serviced
Mortgage Loan, of the related "Outside Servicing Fee 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 Mortgage 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 to the
Trust in
respect of such REO Mortgage Loan, including, without limitation,
(i) Yield
Maintenance Charges, Prepayment Premiums and Penalty Interest and
(ii)
Additional Interest and other amounts, in that order; provided
that, in the case
of any REO Mortgage
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Loan that succeeds an A-Note Mortgage Loan, the foregoing
allocations shall be
subject to the related A/B Intercreditor Agreement. Notwithstanding
the
foregoing, all amounts payable or reimbursable to the Master
Servicer, the
Special Servicer, the Trustee or the Fiscal Agent 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, the Trustee or the Fiscal Agent 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, the Trustee or the Fiscal Agent, as the case
may be, in
respect of an REO Mortgage Loan pursuant to Section 3.05(a).
"REO Property": A Mortgaged Property acquired on behalf and in the
name of the Trustee for the benefit of the Certificateholders (or,
in the case
of an A/B REO Property, the Certificateholders and the related
B-Noteholders(s))
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 Serviced Loan (or a Loan Combination); provided that
the Mortgaged
Property securing the Outside Serviced Loan Combination (if
acquired under the
Outside Servicing Agreement) shall constitute an REO Property if
such Mortgaged
Property is so acquired for the benefit of the related Non-Trust
Loan
Noteholder(s) and the Trust, as their interests may appear, through
foreclosure,
acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with
applicable law in connection with a default or imminent default of
the Outside
Serviced Loan Combination. Any A/B REO Property shall be an REO
Property.
"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).
"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 Mortgage Loan": Each Serviced Mortgage Loan (i)
that is 60 days or more delinquent in respect of any Periodic
Payments (other
than a Balloon Payment), (ii) that becomes an REO Mortgage Loan (in
which case
references to "Required Appraisal Mortgage Loan" shall also include
such REO
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 or (vi) with respect to which any Balloon
Payment on
such Serviced Mortgage Loan has not been paid by its scheduled
maturity date
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 Serviced
Mortgage Loan
will immediately become a Required Appraisal
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Mortgage Loan); 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 the subject 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 subject Mortgage Loan to continue
to be
characterized as a Required Appraisal Mortgage Loan.
For purposes of this Agreement, the term "Required Appraisal
Mortgage
Loan", insofar as it relates to an A-Note Mortgage Loan shall mean
the related
A/B Loan Combination, which A/B Loan Combination shall therefore be
considered a
single "Mortgage Loan" for the purposes of this "Required Appraisal
Mortgage
Loan" definition. In no event shall the Outside Serviced Mortgage
Loan or any
successor REO Mortgage Loan with respect thereto or the Outside
Serviced Loan
Combination constitute a Required Appraisal Mortgage Loan
hereunder.
"Required Appraisal Value": An amount equal to 90% of the Appraised
Value (net of any prior liens and estimated liquidation expenses)
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 Serviced 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.
"Responsible Officer": When used with respect to (i) the initial
Trustee, any officer or assistant officer in the Global Securities
and Trust
Services Group of the initial Trustee, and (ii) any
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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.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates, one or collectively more
global
certificates of such Class registered in the name of the Depository
or its
nominee, in definitive, fully registered form without interest
coupons, none of
which certificates bears a Regulation S Legend, and each of which
certificates
has a Rule 144A CUSIP number.
"S&P": 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.
"Scheduled Payment": With respect to any Mortgage Loan or B-Note
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 or B-Note Loan, as the case may be,
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 or B-Note
Loan, as the case may be, granted or agreed to by the Special
Servicer pursuant
to Section 3.20 (or, in the case of the Outside Serviced Mortgage
Loan, by the
applicable Outside Servicer pursuant to the Outside Servicing
Agreement) or
acceleration of principal by reason of default, and assuming that
each prior
Scheduled Payment has been made in a timely manner; provided,
however, that if
the related loan documents for an A/B Loan Combination provide for
a single
monthly debt service payment for such A/B Loan Combination, then
the Scheduled
Payment for each Serviced Loan comprising such A/B Loan Combination
for any Due
Date shall be that portion of the monthly debt service payment for
such A/B Loan
Combination and such Due Date that is, in accordance with the
related loan
documents and/or the related A/B Intercreditor Agreement, in the
absence of
default, allocable to interest at the related Mortgage Rate on
and/or principal
of each such Serviced Loan comprising the subject A/B Loan
Combination.
"Section 302 Requirements": As defined in Section 8.16(b).
"Securities Act": The Securities Act of 1933, as amended.
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"Senior Certificate": Any [Class A-1, Class A-1D, Class A-2FL,
Class
A-2FX, Class A-3, Class A-SB, Class A-4, Class A-1A, Class X]
Certificate.
"Senior Class A Certificate": Any [Class A-1, Class A-1D, Class
A-2FL,
Class A-2FX, Class A-3, Class A-SB, Class A-4 or Class A-1A]
Certificate.
"Sequential Pay Certificate": Any Principal Balance Certificate
(other
than a Class [XXX] Certificate).
"Serviced Loan": Any Mortgage Loan (other than the [MNO] Mortgage
Loan) or, if and when it is serviced hereunder, any B-Note Loan, as
applicable.
"Serviced Mortgage Loan": Any Mortgage Loan that is a Serviced
Loan.
"Servicer": Any Person that constitutes a "servicer", as defined in
Item 1101(j) of Regulation AB, with respect to the Subject
Securitization
Transaction.
"Servicer Notice": As defined in Section 3.14.
"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, the CMSA Property File and
the CMSA
Advance Recovery Report. Notwithstanding anything in this Agreement
to the
contrary, in the event any of the electronic files listed in the
previous
sentence are amended or changed in any material respect by the CMSA
and placed
on the CMSA Website or otherwise recommended by the CMSA for
commercial
mortgage-backed securities transactions generally, so long as such
electronic
files and such supplemental reports are reasonably acceptable (as
applicable) to
the Master Servicer, the Special Servicer and the Trustee, then the
same shall
be used with respect to the Collection Period that commences at any
time
following the date that is not later than three (3) months
following adoption of
the form thereof by the CMSA.
"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 (including reasonable attorneys' fees
and expenses
and reasonable fees of real estate brokers) incurred by or on
behalf of the
Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent in
connection with the servicing of a Serviced Loan, or in connection
with the
administration of any REO Property, including, but not limited to,
the cost of
(a) compliance with the obligations of the Master Servicer 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 REO Property,
including, without
limitation, appraisals and compliance with Section 3.16(a) (to the
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extent not covered by available funds in the applicable REO
Account) and Section
3.20(g) (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, general and administrative costs of the Master Servicer
and the
Special Servicer, costs or expenses incurred by any such party in
connection
with its purchase of a Serviced 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, as such may be amended from time to time.
"Servicing Fees": With respect to (a) each Serviced Loan and REO
Loan,
the Master Servicing Fee, if any, and the Special Servicing Fee;
and (b) with
respect to the Outside Serviced Mortgage Loan (or any successor REO
Mortgage
Loan with respect thereto), the Master 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 Serviced Loan that are reasonably
required for
the ongoing administration of the Serviced 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 Function Participant": Any of: (i) the Master Servicer;
(ii) the Special Servicer; and (iii) any other party hereto, in
addition to the
Master Servicer and the Special Servicer, that is a "party
participating in the
servicing function" (within the meaning of the instructions to Item
1122 of
Regulation AB) as regards the Trust Fund.
"Servicing Officer": Any officer or employee of the Master Servicer
or
the Special Servicer involved in, or responsible for, the
administration and
servicing of the Serviced Loans, whose name and specimen signature
appear on a
list of servicing officers furnished by such party to the Trustee
and the
Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing Representative": With respect to the Master Servicer,
the
Special Servicer or the Trustee, any other Person (including any
Sub-Servicer,
subcontractor, vendor or agent) retained or engaged thereby to
perform any
duties in connection with this Agreement or all or any portion of
the Trust
Fund, the performance of which duties would cause such other Person
to be, or
result in such other Person being, a Servicer or a Sub-Servicing
Function
Participant.
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, as applicable, the servicing and administration
of the
Serviced Loans and any Administered REO Properties 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 and/or similar foreclosure properties, as
applicable, (i)
for other third parties, giving due consideration to customary
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and usual standards of practice of prudent institutional commercial
mortgage
loan servicers servicing and administering mortgage loans and/or
foreclosure
properties for third parties, as applicable, or (ii) held in its
own portfolio,
whichever standard is higher; (b) with a view to (i) the timely
collection of
all Periodic Payments due on each such Serviced Loan or, if any
such Serviced
Loan shall come into and continue in default, the maximization of
the recovery
on such Serviced Loan on a net present value basis (the relevant
discounting of
anticipated collections to be performed at the related Mortgage
Rate) and (ii)
the best interests (as determined by the Master Servicer or Special
Servicer, as
applicable, in its reasonable and good faith judgment) of the
Certificateholders
(as a collective whole) and the Trust Fund (or, in the case of any
A/B Loan
Combination, the Certificateholders, the Trust Fund and the related
B-Noteholder(s) (as a collective whole), taking into account, to
the extent
consistent with the related A/B Intercreditor Agreement and the
related Mortgage
Loan documents, the subordinate nature of the related B-Note
Loan(s)); 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
transactions contemplated by this Agreement or any Affiliate
thereof; (ii) the
ownership of any Certificate (or other interest in any Serviced
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 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 Serviced Loan, the
occurrence of any of the events described in clauses (a) through
(g) of the
definition of "Specially Serviced Loan"; provided that a particular
Servicing
Transfer Event shall not exist with respect to an A-Note Mortgage
Loan if the
underlying default giving rise thereto is the subject of a cure
event exercised
in accordance with the related A/B Intercreditor Agreement or with
respect to
the [ABC] Mortgage Loan if the underlying default is the subject of
a cure event
exercised in accordance with Section 6.14(d) of this Agreement.
"Significant Obligor": (a) Any obligor (as defined in Item 1101(i)
of
Regulation AB) or group of affiliated obligors on any Trust
Mortgage Loan or
group of Trust Mortgage Loans that represent, as of the Closing
Date, 10% or
more of the Mortgage Pool (by Cut-off Date Balance); or (b) any
single Mortgaged
Property or group of Mortgaged Properties securing any Trust
Mortgage Loan or
group of cross-collateralized and/or cross-defaulted Trust Mortgage
Loans that
represent, as of the Closing Date, 10% or more of the Mortgage Pool
(by Cut-off
Date Balance).
"Single Certificate": For purposes of Section 4.02, a hypothetical
Regular Certificate or Class A-2FL Certificate evidencing a $1,000
denomination.
"Special Servicer": [Insert name of initial Special Servicer], its
successor in interest, or any successor special servicer appointed
as herein
provided.
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"Special Servicer Reportable Event": Any of the following events,
conditions, circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that is
material to the Subject Securitization Transaction, including, for
example,
a servicing agreement with a Servicer contemplated by Item
1108(a)(3) of
Regulation AB, but only if the Special Servicer or any Servicing
Representative of the Special Servicer is a party to such agreement
or has
entered into such agreement on behalf of the Trust;
(ii) the termination of a definitive agreement that is material to
the
Subject Securitization Transaction (otherwise than by expiration of
the
agreement on its stated termination date or as a result of all
parties
completing their obligations under such agreement), but only if the
Special
Servicer or any Servicing Representative of the Special Servicer is
a party
to such agreement or has entered into such agreement on behalf of
the
Trust;
(iii) the appointment of a receiver, fiscal agent or similar
officer
for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or
in any other proceeding under state or federal law in which a court
or
governmental authority has assumed jurisdiction over substantially
all of
the assets or business of any Material Debtor, including where such
jurisdiction has been assumed by leaving the existing directors and
officers in possession but subject to the supervision and orders of
a court
or governmental authority, but only if the subject Material Debtor
is (A)
the Special Servicer, (B) any Servicing Representative of the
Special
Servicer that constitutes a Servicer contemplated by Item
1108(a)(3) of
Regulation AB or (C) any Significant Obligor with respect to a
Specially
Serviced Mortgage Loan;
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or
governmental
authority having supervision or jurisdiction over substantially all
of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Special Servicer, (B) any Servicing
Representative of the Special Servicer that constitutes a Servicer
contemplated by Item 1108(a)(3) of Regulation AB or (C) any
Significant
Obligor with respect to a Specially Serviced Mortgage Loan;
(v) any resignation, removal, replacement or substitution of (A)
the
Special Servicer or (B) any Servicing Representative of the Special
Servicer that constitutes a Servicer contemplated by Item
1108(a)(2) of
Regulation AB;
(vi) any appointment of (A) a new Special Servicer or (B) any new
Servicing Representative of the Special Servicer that constitutes a
Servicer contemplated by Item 1108(a)(2) of Regulation AB;
(vii) any nonpublic disclosure, by the Special Servicer or any
Servicing Representative of the Special Servicer, with respect to
the
Subject Securitization Transaction (other than disclosure required
by this
Agreement) that is required to be disclosed by Regulation FD (17
C.F.R.
243.100 through 243.103);
(viii) any other information of importance to Certificateholders
(determined by the Special Servicer in accordance with the
Servicing
Standard) that (A) is not otherwise required to be included in the
Distribution Date Statement or any other report to be delivered or
otherwise
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made available to Certificateholders hereunder, (B) the Special
Servicer
has determined, in accordance with the Servicing Standard, could
have an
adverse effect on payments to any Class of Certificateholders, and
(C) is
directly related to a Specially Serviced Mortgage Loan;
(ix) the commencement or termination of, or any material
developments
regarding, any legal proceedings pending against any Material
Litigant, or
of which any property of a Material Litigant is the subject, or any
threat
by a governmental authority to bring any such legal proceedings,
that are
material to Certificateholders, but only if the Special Servicer is
controlling the subject litigation or if the subject Material
Litigant is
(A) the Special Servicer, (B) any Servicing Representative of the
Special
Servicer that constitutes a Servicer contemplated by Item
1108(a)(3) of
Regulation AB or (C) any Significant Obligor with respect to a
Specially
Serviced Mortgage Loan;
(x) the receipt by the Special Servicer or by any Servicing
Representative of the Special Servicer of any updated financial
statements,
balance sheets, rent rolls or other financial information regarding
any
Significant Obligor with respect to a Specially Serviced Mortgage
Loan;
(xi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in a report delivered by the
Special
Servicer to the Trustee and the Depositor in accordance with
Section
8.15(b), whether the Special Servicer has become an affiliate (as
defined
in Rule 405 of the Securities Act) of any of (A) the Trust, (B) the
Depositor, (C) a Mortgage Loan Seller, (D) the Trustee, (E) the
Master
Servicer, (F) any Servicing Representative of the Special Servicer
that
constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB or
(G) any Significant Obligor;
(xii) to the extent not otherwise disclosed in the Prospectus
Supplement, any business relationship, agreement, arrangement,
transaction
or understanding contemplated by Item 1119(b) of Regulation AB
between the
Depositor, a Mortgage Loan Seller or the Trust, on the one hand,
and the
Special Servicer or any Servicing Representative of the Special
Servicer,
on the other hand; and
(xiii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the
Subject
Securitization Transaction or the Mortgage Loans contemplated by
Item
1119(c) of Regulation AB between the Depositor, a Mortgage Loan
Seller or
the Trust, on the one hand, and the Special Servicer or any
Servicing
Representative of the Special Servicer, on the other hand.
"Special Servicing Fee": With respect to each Specially Serviced
Loan
and each REO Loan that relates to an Administered REO Property, 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
Loan and each REO Loan that relates to an Administered REO
Property, ______% per
annum; [provided that the Special Servicing Fee for each Specially
Serviced
Mortgage Loan and REO Loan shall be no less than the monthly
minimum amount
provided for in Section 3.11(c)].
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"Specially Serviced Loan": Any Serviced Loan as to which any of the
following events have occurred (subject, however, in the case of
each of the
[DEF] and [GHI] Loan Combination, to Section 18 of the related
Co-Lender
Agreement and, in the case of the [ABC] Mortgage Loan, to Section
6.14 of this
Agreement):
(a) the related Mortgagor shall have (i) failed to make when due
any
Balloon Payment unless the Master Servicer has, on or prior to the
due date
of such Balloon Payment, received written evidence (which the
Master
Servicer is required to deliver to the Special Servicer pursuant to
Section
3.19(c)) from an institutional lender of such lender's binding
commitment
to refinance the subject Serviced Loan within 60 days after the due
date of
such Balloon Payment and during the interim the related Mortgagor
has
continued to make the Assumed Periodic Payment in effect prior to
maturity
(provided that if such refinancing does not occur during such time
specified in the commitment, the subject Serviced Loan will
immediately
become a Specially Serviced Loan), 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
or, in the case of the [ABC] Mortgage Loan, with the consent of the
[ABC]
Controlling Party or, in the case of any A/B Loan Combination, with
the
consent of the related A/B Controlling Party) shall have
determined, in its
good faith reasonable judgment and in accordance with the Servicing
Standard, based on, among other things, communications with the
related
Mortgagor, that a default in making a Periodic Payment (including a
Balloon
Payment) or any other default under the applicable loan documents
that
would (with respect to such other default) materially impair the
value of
the Mortgaged Property as security for the subject Serviced 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 subject Serviced 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 Special Servicer
shall have
determined, 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 subject Serviced Loan or otherwise
materially
adversely affects the interests of Certificateholders and that
continues
unremedied beyond the applicable grace period under the terms of
the
subject Serviced 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
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
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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 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 received notice of the
commencement
of foreclosure or similar proceedings with respect to the related
Mortgaged
Property;
provided that a Serviced Loan will cease to be a Specially Serviced
Loan when a
Liquidation Event has occurred with respect to such Serviced Loan,
when the
related Mortgaged Property has become an REO Property or, so long
as at such
time no circumstance identified in clauses (a) through (g) above
exists that
would cause such Serviced Loan to continue to be characterized as a
Specially
Serviced Loan, when:
(i) with respect to the circumstances described in clause (a)
above,
the related Mortgagor has made three consecutive full and timely
Periodic
Payments under the terms of the subject Serviced Loan (as such
terms may be
changed or modified in connection with a bankruptcy or similar
proceeding
involving the related Mortgagor or by reason of a modification,
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, 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)
above,
such default is cured; and
(iv) with respect to the circumstances described in clause (g)
above,
such proceedings are terminated.
Notwithstanding the foregoing, during any time an entire A/B Loan
Combination is serviced and administered pursuant to this Agreement
(subject,
however, in the case of each of the [DEF] and [GHI] Loan
Combinations, to
Section 18 of the related Co-Lender Agreement), if a Servicing
Transfer Event
exists with respect to one Serviced Loan in such A/B Loan
Combination, it will
also be considered to exist for the other Serviced Loan(s) in such
A/B Loan
Combination.
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None of the mortgage loans comprising the Outside Serviced Loan
Combination shall constitute a Specially Serviced Loan hereunder.
"Specially Serviced Mortgage Loan": A Mortgage Loan that is a
Specially Serviced Loan.
"Startup Day": With respect to each REMIC Pool, the day designated
as
such in Section 10.01(c).
"State and Local Taxes": Taxes imposed by the State of New York, by
the State in which the Mortgage Files are maintained, by any of the
States in
which are located the Corporate Trust Office and/or the respective
offices of
the Master Servicer and Special Servicer responsible for servicing
and
administering the Serviced Loans and any REO Properties, and/or by
any other
state or local taxing authorities as may, 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 or B-Note
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 or B-Note Loan, as the case may be,
granted or
agreed to by the Special Servicer pursuant to Section 3.20 (or, in
the case of
the Outside Serviced Mortgage Loan, by the applicable Outside
Servicer pursuant
to the Outside Servicing Agreement) and, in the case of an ARD
Mortgage 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
thereof after
application of all principal payments due thereon 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 prior
to the end
of the Collection Period for the then-most recent Distribution Date
coinciding
with or preceding such date of determination, minus (z) the sum of:
(i) the principal portion of each Periodic Payment due on such
Mortgage Loan after the Cut-off Date or the related date of
substitution,
as the case may be, to the extent received from the Mortgagor or
advanced
by the Master Servicer, the Trustee or the Fiscal Agent 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;
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(iv) the principal portion of any Realized Loss incurred in respect
of
such Mortgage Loan prior to the end of the Collection Period for
the
then-most recent Distribution Date coinciding with or preceding
such date
of determination; and
(v) to the extent not otherwise included as part of the amount
described in clause (z)(iv) of this definition, 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 then-most recent Distribution Date coinciding with or
preceding
such date of determination.
With respect to any REO Mortgage 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:
(i) the principal portion of any P&I Advance made with respect
to such
REO 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;
(ii) the principal portion of all Insurance Proceeds, Liquidation
Proceeds and REO Revenues received with respect to such REO
Mortgage Loan,
to the extent distributed to Certificateholders on or before such
date of
determination; and
(iii) the principal portion of any Realized Loss incurred in
respect
of such REO Mortgage Loan prior to the end of the Collection Period
for the
then-most recent Distribution Date coinciding with or preceding
such date
of determination.
A Mortgage Loan or an REO Mortgage Loan shall be deemed to be part
of
the Mortgage Pool 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. For
purposes of this
definition, payments or other collections of principal on or with
respect to any
Mortgage Loan or REO Mortgage Loan shall be deemed distributed to
Certificateholders as of the first Distribution Date that such
payments or other
collections of principal are (or, without regard to clause (i) of
the definition
of "Principal Distribution Amount," would have been) included in
the Principal
Distribution Amount. To the extent that principal from general
collections on
the Mortgage Pool is used to reimburse, or pay interest on,
Nonrecoverable
Advances pursuant to Section 3.05(a) hereof with respect to any
particular
Mortgage Loan or REO Mortgage Loan, and such principal amount has
not been
included as part of the Principal Distribution Amount, such
principal amount
shall nonetheless continue to be deemed to be distributed for
purposes of
calculating the Stated Principal Balance. Notwithstanding the
foregoing, if any
Mortgage Loan is paid in full, or if any Mortgage Loan or REO
Property is
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 or the
related REO
Mortgage Loan will be zero.
With respect to any B-Note Loan or any successor REO B-Note Loan
with
respect thereto on any date of determination, the Stated Principal
Balance shall
equal the unpaid principal
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balance of such B-Note Loan or the deemed unpaid principal balance
of such
successor REO B-Note Loan.
"Subject Securitization Transaction": The commercial mortgage
securitization transaction contemplated by this Agreement.
"Subsequent Exchange Act Reports": As defined in Section 8.16(a).
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"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 Serviced
Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution of
Mortgage Loans pursuant to any Mortgage Loan Purchase Agreement, 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, then 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.
"Swap Agreement": The ISDA 2002 Master Agreement together with the
related schedule, confirmation and any annexes thereto, dated as of
__________________, 200_, by and among the Swap Counterparty and
the Trustee,
solely in its capacity as Trustee, on behalf of the Trust, or any
replacement
interest rate swap agreement entered into by the Trustee in
accordance with the
terms of Section 3.27.
"Swap Counterparty": [Insert name of initial Swap Counterparty] and
its successors in interest or any swap counterparty under a
replacement Swap
Agreement.
"Swap Default": Any failure on the part of the Swap Counterparty
(that
continues beyond any applicable grace period under the Swap
Agreement) to (i)
make a required payment under the Swap Agreement as and when due
thereunder,
(ii) either post acceptable collateral or find an acceptable
replacement Swap
Counterparty or find an acceptable guarantor after a
Collateralization Event (as
defined in the Swap Agreement) has occurred, as required by Part
1(n)(1) of the
Schedule to the Master Agreement in the related Swap Agreement, or
(iii) find an
acceptable replacement Swap Counterparty after a Rating Agency
Trigger Event (as
defined in the Swap Agreement) has occurred, as required by Part
1(n)(3) of the
Schedule to the Master Agreement in the related Swap Agreement.
"Swap Termination Fees": Any fees, costs or expenses payable by the
Swap Counterparty to the Trust in connection with a Swap Default,
termination of
the Swap Agreement or liquidation of the Swap Agreement, as
specified in the
Swap Agreement.
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"Tax Administrator": The Trustee or any Tax Administrator appointed
pursuant to Section 8.14.
"Tax Matters Person": With respect to each REMIC Pool, 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 Class R 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 each REMIC Pool due to its classification
as a REMIC
under the REMIC Provisions, and the federal income tax return on
Internal
Revenue Service Form 1041 to be filed on behalf of a 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.
"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": The common law trust created hereunder.
"Trust Fund": Collectively, all of the assets of the respective
Grantor Trusts and the respective REMIC Pools.
"Trustee": [Insert name of initial Trustee], its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Appointee": Any Fiscal Agent, Authenticating Agent,
Certificate Registrar, REMIC Administrator, Custodian, co-trustee
or separate
trustee appointed or designated by the Trustee hereunder.
"Trustee Reportable Event": Any of the following events,
conditions,
circumstances and/or matters:
(i) the entry into or amendment to a definitive agreement that is
material to the Subject Securitization Transaction, including, for
example,
a servicing agreement with a Servicer contemplated by Item
1108(a)(3) of
Regulation AB, but only if the Trustee, any Servicing
Representative of the
Trustee or any Trustee Appointee is a party to such agreement or
has
entered into such agreement on behalf of the Trust;
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(ii) the termination of a definitive agreement that is material to
the
Subject Securitization Transaction (otherwise than by expiration of
the
agreement on its stated termination date or as a result of all
parties
completing their obligations under such agreement), but only if the
Trustee, any Servicing Representative of the Trustee or any Trustee
Appointee is a party to such agreement or has entered into such
agreement
on behalf of the Trust;
(iii) the appointment of a receiver, fiscal agent or similar
officer
for any Material Debtor in a proceeding under the U.S. Bankruptcy
Code or
in any other proceeding under state or federal law in which a court
or
governmental authority has assumed jurisdiction over substantially
all of
the assets or business of any Material Debtor, including where such
jurisdiction has been assumed by leaving the existing directors and
officers in possession but subject to the supervision and orders of
a court
or governmental authority, but only if the subject Material Debtor
is (A)
the Trustee, (B) any Servicing Representative of the Trustee that
constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB,
(C) any Trustee Appointee, (D) any Enhancement/Support Provider or
(E) the
Trust;
(iv) the entry of an order confirming a plan of reorganization,
arrangement or liquidation of a Material Debtor by a court or
governmental
authority having supervision or jurisdiction over substantially all
of the
assets or business of such Material Debtor, but only if the subject
Material Debtor is (A) the Trustee, (B) any Servicing
Representative of the
Trustee that constitutes a Servicer contemplated by Item 1108(a)(3)
of
Regulation AB, (C) any Trustee Appointee, (D) any
Enhancement/Support
Provider or (E) the Trust;
(v) any event that has occurred hereunder that would materially
alter
the payment priority or distribution of cash flows regarding the
Certificates;
(vi) any material modification to the rights of the Holders of any
Class of Certificates, including by reason of a modification to
this
Agreement, a Mortgage Loan Purchase Agreement or any other
constituent
instrument;
(vii) any material limitation or qualification of the rights
evidenced
by any Class of Certificates by reason of the modification of any
other
Class of Certificates;
(viii) any amendment to this Agreement pursuant to Section 11.01;
(ix) any resignation, removal, replacement or substitution of (A)
the
Trustee, the Master Servicer or the Special Servicer or (B) any
Servicing
Representative of the Trustee that constitutes a Servicer
contemplated by
Item 1108(a)(2) of Regulation AB;
(x) any appointment of (A) a new Trustee, new Master Servicer or
new
Special Servicer or (B) any new Servicing Representative of the
Trustee
that constitutes a Servicer contemplated by Item 1108(a)(2) of
Regulation
AB;
(xi) any termination of a material enhancement or support specified
in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of
Regulation AB
that was previously applicable regarding one or more Classes of the
Certificates, which termination has occurred other than by
expiration of
the contract on its stated termination date or as a result of all
parties
completing their obligations under such agreement;
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(xii) any addition of a material enhancement or support specified
in
Item 1114(a)(1) through (3) of Regulation AB or Item 1115 of
Regulation AB
with respect to one or more Classes of the Certificates;
(xiii) any material amendment or modification of a material
enhancement or support specified in Item 1114(a)(1) through (3) of
Regulation AB or Item 1115 of Regulation AB with respect to one or
more
Classes of the Certificates;
(xiv) any material failure on the part of the Trustee to make on
the
applicable Distribution Date any required monthly distributions to
the
Holders of any Class of Certificates;
(xv) any nonpublic disclosure, by the Trustee, any Servicing
Representative of the Trustee or any Trustee Appointee, with
respect to the
Subject Securitization Transaction that is required to be disclosed
by
Regulation FD (17 C.F.R. 243.100 through 243.103);
(xvi) any other information of importance to Certificateholders
that
is not otherwise required to be included in the Distribution Date
Statement
or any other report to be delivered or otherwise made available to
Certificateholders hereunder and that is directly related to the
obligations of the Trustee hereunder;
(xvii) the commencement or termination of, or any material
developments regarding, any legal proceedings pending against any
Material
Litigant, or of which any property of a Material Litigant is the
subject,
or any threat by a governmental authority to bring any such legal
proceedings, that are material to Certificateholders, but only if
the
Trustee is controlling the subject litigation or if the subject
Material
Litigant is (A) the Trustee, (B) any Servicing Representative of
the
Trustee that constitutes a Servicer contemplated by Item 1108(a)(3)
of
Regulation AB, (C) any Trustee Appointee, (D) any
Enhancement/Support
Provider or (E) the Trust;
(xviii) any material default in the payment of principal and
interest
on, or any other material default with respect to, any Class of
Certificates;
(xix) the submission of any matter to a vote by Certificateholders;
(xx) the receipt by the Trustee or by any Servicing Representative
or
other agent of the Trustee of any updated information regarding an
Enhancement/Support Provider with respect to any Class of
Certificates that
is required pursuant to Item 1114(b)(2) or Item 1115(b) of
Regulation AB;
(xxi) to the extent not otherwise disclosed in the Prospectus
Supplement or previously included in an Exchange Act Report in
accordance
with this Agreement, whether the Trustee has become an affiliate
(as
defined in Rule 405 of the Securities Act) of any of (A) the Trust,
(B) the
Depositor, (C) a Mortgage Loan Seller, (D) the Master Servicer, (E)
the
Special Servicer, (F) any Servicing Representative of the Trustee
that
constitutes a Servicer contemplated by Item 1108(a)(3) of
Regulation AB,
(G) any Trustee Appointee or (H) any Significant Obligor;
(xxii) to the extent not otherwise disclosed in the Prospectus
Supplement, any business relationship, agreement, arrangement,
transaction
or understanding contemplated by Item
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1119(b) of Regulation AB between the Depositor, a Mortgage Loan
Seller or
the Trust, on the one hand, and the Trustee, any Trustee Appointee
or any
Servicing Representative of the Trustee, on the other hand; and
(xxiii) to the extent not otherwise disclosed in the Prospectus
Supplement, any specific relationship involving or relating to the
Subject
Securitization Transaction or the Mortgage Loans contemplated by
Item 1119(c) of
Regulation AB between the Depositor, a Mortgage Loan Seller or the
Trust, on the
one hand, and the Trustee, any Trustee Appointee or any Servicing
Representative
of the Trustee, on the other hand.
"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.
"Uncertificated Accrued Interest": With respect to any Loan REMIC
Regular Interest for any Distribution Date, one-twelfth of the
product of (a)
the annual Loan REMIC Remittance Rate applicable to such Loan REMIC
Regular
Interest for such Distribution Date, multiplied by (b) the related
Loan REMIC
Principal Balance outstanding immediately prior to such
Distribution Date; and,
with respect to any REMIC I Regular Interest for any Distribution
Date,
one-twelfth of the product of (a) the annual REMIC I Remittance
Rate applicable
to such REMIC I Regular Interest for such Distribution Date,
multiplied by (b)
the related REMIC I Principal Balance outstanding immediately prior
to such
Distribution Date. Uncertificated Accrued Interest shall be
calculated on a
30/360 Basis and, with respect to any Loan REMIC Regular Interest
or REMIC I
Regular Interest for any Distribution Date, shall be deemed to
accrue during the
calendar month preceding the month in which such Distribution Date
occurs.
"Uncertificated Distributable Interest": With respect to any Loan
REMIC Regular Interest for any Distribution Date, the
Uncertificated Accrued
Interest in respect of such Loan REMIC Regular Interest for such
Distribution
Date, reduced (to not less than zero) by the sum of (i) the portion
of any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date
attributable
to the [ABC] Mortgage Loan that is allocable to such Loan REMIC
Regular Interest
in accordance with Section 4.04(f) and (ii) the portion of any
Mortgage Deferred
Interest attributable to the [ABC] Mortgage Loan that is allocable
to such Loan
REMIC Regular Interest on such Distribution Date in accordance with
Section
4.04(d). With respect to any REMIC I Regular Interest for any
Distribution Date,
the Uncertificated Accrued Interest in respect of such REMIC I
Regular Interest
for such Distribution Date, reduced (to not less than zero) by the
sum of (i)
the portion of any Net Aggregate Prepayment Interest Shortfall for
such
Distribution Date that is allocable to such REMIC I Regular
Interest in
accordance with Section 4.04(f) and (ii) the portion of any
Mortgage Deferred
Interest that is allocable to such REMIC I Regular Interest on such
Distribution
Date in accordance with Section 4.04(d).
"Underwriter": Each of Citigroup Global Markets Inc.,
[____________________], [____________________],
[____________________],
[____________________] and [____________________], and in each
case, any
successor in interest.
"United States Tax 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
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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 Tax
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 Tax
Persons).
"United States Securities Person": Any "U.S. person" as defined in
Rule 902(k) of Regulation S.
"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 CMSA Advance Recovery Report and, from
and after its
filing with the Commission, any item deemed to be an Unrestricted
Servicer
Report in accordance with the definition of "Restricted Servicer
Reports".
"USAP": The Uniform Single Attestation Program for Mortgage
Bankers.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times
during the term
of this Agreement, 100% of the Voting Rights shall be allocated
among the
Holders of the Regular Certificates and the Class A-2FL
Certificates.
[Ninety-six percent (96%)] of the Voting Rights shall be allocated
among the
various Classes of the Principal Balance Certificates in proportion
to the
respective Class Principal Balances of such Classes of
Certificates; provided
that, solely for the purpose of determining the respective Voting
Rights of the
various Classes of Principal Balance Certificates, the aggregate
Appraisal
Reduction Amount allocated to the respective Classes of the
Principal Balance
Certificates in accordance with Section 4.04(e) shall be treated as
Realized
Losses with respect to the calculation of the Certificate Principal
Balances
thereof; and provided, further, 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 Controlling Class Certificateholder. [Four percent (4%)]
in the
aggregate of the Voting Rights shall be allocated to the Class X
Certificates in
proportion to the respective Class Notional Amounts of such Classes
of
Certificates. The Class Y and Class R 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.
"Weighted Average Net Mortgage Pass-Through 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 Pass-Through Rates applicable to the Mortgage Loans and
any REO
Mortgage Loans for such Distribution Date, weighted on the basis of
their
respective Stated Principal Balances (or, in the case of the [ABC]
Mortgage Loan
or any successor REO Mortgage Loan with respect thereto, the Loan
REMIC
Principal Balance of Loan REMIC Regular Interest [XXX]-
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I) immediately following the preceding Distribution Date (or, in
the case of the
initial Distribution Date, as of the Closing Date).
"Workout Fee": With respect to each Corrected 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": 1.0%.
"Yield Maintenance Charge": Payments paid or payable, as the
context
requires, on a Mortgage Loan or B-Note 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 or B-Note Loan, as the case may be) 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 or
B-Note 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 Serviced 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
Serviced 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
.055 is the decimal version of the percentage 5.5% and 0.16667 is
the decimal
version of the exponential power. The MEY in the above calculation
is 5.44%.
SECTION 1.02. General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided
or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as
well as the singular, and the use of any gender herein shall be
deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP as in effect from
time to
time;
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(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document
are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same
Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and other words of similar import refer to this Agreement as a
whole and
not to any particular provision; and
(vi) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
SECTION 1.03. Calculation of LIBOR.
(a) The initial value of LIBOR shall be ______% per annum. Such
value
of LIBOR shall be utilized in calculating (i) the Class A-2FL
Floating Swap
Payment to be made on the Class A-2FL Swap Payment Date in
___________ 200_ and
(ii) the Pass-Through Rate with respect to the Class A-2FL
Certificates for the
Distribution Date in ___________ 200_.
(b) The value of LIBOR applicable to the calculation of the Class
A-2FL Floating Swap Payment to be made on the Class A-2FL Swap
Payment Date in
any particular calendar month subsequent to ___________ 200_, as
well as the
calculation of the Pass-Through Rate with respect to the Class
A-2FL
Certificates for the Distribution Date in such calendar month
(provided that no
Class A-2FL Distribution Conversion is then in effect), shall be
determined by
the Trustee (and promptly reported to the Swap Counterparty) on the
LIBOR
Determination Date in the preceding calendar month in accordance
with the
following methodology: LIBOR shall equal the rate for deposits in
U.S. Dollars,
for a period equal to one month, which appears on the Dow Jones
Market Service
(formerly Telerate) Page 3750 as of 11:00 a.m., London time, on the
applicable
LIBOR Determination Date. If that rate does not appear on Dow Jones
Market
Service Page 3750, LIBOR will be determined on the basis of the
rates at which
deposits in U.S. Dollars are offered by any five major reference
banks in the
London interbank market selected by the Trustee to provide that
bank's offered
quotation of such rates at approximately 11:00 a.m., London time,
on the
applicable LIBOR Determination Date to prime banks in the London
interbank
market for a period of one month, commencing on the first
Distribution Date
following the applicable LIBOR Determination Date and in an amount
that is
representative for a single such transaction in the relevant market
at the
relevant time. The Trustee shall request the principal London
office of any five
major reference banks in the London interbank market selected by
the Trustee to
provide a quotation of those rates, as offered by each such bank.
If at least
two such quotations are provided, LIBOR will be the arithmetic mean
of the
quotations. If fewer than two quotations are provided as requested,
LIBOR will
be the arithmetic mean of the rates quoted by major banks in New
York City
selected by the Trustee, at approximately 11:00 a.m., New York City
time, on the
applicable LIBOR Determination Date for loans in U.S. Dollars to
leading
European banks for a period equal to one month, commencing on the
applicable
LIBOR Determination Date and in an amount that is representative
for a single
such transaction in the relevant market at the relevant time. The
determination
of LIBOR by the Trustee will be binding absent manifest error.
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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 establish a common law trust under the laws of
the State of
New York, designated as "[Insert name of issuing trust]", and 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 each of the
Mortgage
Loan Purchase Agreements, (iii) the rights of the Depositor under
each A/B
Intercreditor Agreement and (iv) 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 and, in the case of each Mortgage Loan that is part of a Loan
Combination,
is subject to the provisions of the corresponding Co-Lender
Intercreditor
Agreement. The Trustee, on behalf of the Trust, assumes the rights
and
obligations of the holder of the Mortgage Note for each A-Note
Mortgage Loan
under each Co-Lender Agreement; provided that the Master Servicer
and the
Special Servicer, as the case may be, shall, as further set forth
in Article
III, perform the servicing obligations of the holder of the
Mortgage Note for
the [MNO] Mortgage Loan under the [MNO] Co-Lender Agreement and the
holder of
the Mortgage Note for each A-Note Mortgage Loan under each A/B
Intercreditor
Agreement. 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.
The Trust Fund shall constitute the sole assets of the Trust.
Except
as expressly provided herein, the Trust may not issue or invest in
additional
securities, borrow money or make loans to other Persons. The fiscal
year end of
the Trust shall be December 31.
(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, the Mortgage Loan Sellers 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 within ten
Business
Days following the Closing Date), on or before the Closing Date,
the Mortgage
File for each Mortgage Loan so assigned. 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 and the Outside
Serviced Mortgage
Loan) 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 (exclusive
of the
Outside Serviced Mortgage Loan), any of the documents and/or
instruments
referred to in clauses (a)(ii), (a)(iii), (a)(vi) (if recorded) and
(a)(viii)
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of the definition of "Mortgage File," with evidence of recording or
filing, as
applicable, thereon, solely because of a delay caused by the public
recording
office or filing office, as applicable, where such document or
instrument has
been delivered for recordation or filing, as the case may be, 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 Custodia
