EXHIBIT 4.1
CWCapital Commercial Funding Corp.,
as Depositor
and
[______]
as Master Servicer
and
[______],
as Special Servicer
and
[______],
as Trustee
POOLING AND SERVICING AGREEMENT
Dated as of [_________], 200_
-----------------------------------
$[_________]
Commercial Mortgage Trust 200_-___,
Commercial Mortgage Pass-Through Certificates,
Series 200_-___
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined
Terms................................................
Section 1.02 General
Interpretive Principles..............................
Section 1.03 Certain
Adjustments to the Principal Distributions on the
Certificates................................................
Section 1.04 Certain
Calculations Relating to REO Loans...................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Creation
of Trust; Conveyance of Mortgage Loans..............
Section 2.02
Acceptance of Trust Fund by Trustee..........................
Section 2.03
Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties..................
Section 2.04
Representations, Warranties and Covenants of the Depositor...
Section 2.05 Execution
of Certificates; Issuance of Uncertificated
Lower-Tier Interests........................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01
Administration of the Mortgage Loans.........................
Section 3.02
Collection of Loan Payments..................................
Section 3.03
Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts..................................
Section 3.04 Custodial
Account, Defeasance Deposit Account, Distribution
Account, Interest Reserve Account and Excess Liquidation
Proceeds Account............................................
Section 3.05 Permitted
Withdrawals From the Custodial Account, the
Distribution Account, the Interest Reserve Account and the
Excess Liquidation Proceeds Account.........................
Section 3.06
Investment of Funds in the Servicing Accounts, the Reserve
Accounts, the Defeasance Deposit Account, the Custodial
Accounts and the REO Accounts...............................
Section 3.07
Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage; Environmental Insurance..................
Section 3.08
Enforcement of Due-on-Sale and Due on Encumbrance Provisions.
Section 3.09
Realization Upon Defaulted Loans; Required Appraisals;
Appraisal Reduction Calculation.............................
Section 3.10 Trustee
and Custodian to Cooperate; Release of
Mortgage Files..............................................
Section 3.11 Servicing
Compensation; Payment of Expenses..................
Section 3.12 Certain
Matters Regarding Servicing Advances.................
Section 3.13 Property
Inspections; Collection of Financial Statements;
Delivery of Certain Reports.................................
Section 3.14
[Reserved.]..................................................
Section 3.15
[Reserved.]..................................................
Section 3.16 Access to
Certain Information................................
Section 3.17 Title to
REO Property; REO Accounts..........................
Section 3.18
Management of REO Property...................................
Section 3.19 Sale of
Mortgage Loans and REO Properties....................
Section 3.20
Additional Obligations of the Master Servicer; Obligations to
Notify Ground Lessors; the Special Servicer's Right to
Request the Master Servicer to Make Servicing Advances......
Section 3.21
Modifications, Waivers, Amendments and Consents; Defeasance..
Section 3.22 Transfer
of Servicing Between Master Servicer and Special
Servicer; Record Keeping....................................
Section 3.23
Sub-Servicing Agreements.....................................
Section 3.24
Representations and Warranties of the Master Servicer........
Section 3.25
Representations and Warranties of the Special Servicer.......
Section 3.26
[Reserved.]..................................................
Section 3.27
Application of Default Charges...............................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
Section 4.01
Distributions................................................
Section 4.02
Statements to Certificateholders; CMSA Loan Periodic Update
File........................................................
Section 4.03 P&I
Advances.................................................
Section 4.04
Allocation of Realized Losses and Additional Trust Fund
Expenses....................................................
Section 4.05 Various
Reinstatement Amounts................................
Section 4.06
Calculations.................................................
Section 4.07 Use of
Agents................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The
Certificates.............................................
Section 5.02
Registration of Transfer and Exchange of Certificates........
Section 5.03
Book-Entry Certificates......................................
Section 5.04
Mutilated, Destroyed, Lost or Stolen Certificates............
Section 5.05 Persons
Deemed Owners........................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER
AND THE DIRECTING HOLDER
Section 6.01 Liability
of Depositor, Master Servicer and Special
Servicer....................................................
Section 6.02 Continued
Qualification and Compliance of Master Servicer;
Merger, Consolidation or Conversion of Depositor, Master
Servicer or Special Servicer................................
Section 6.03
Limitation on Liability of Depositor, Master Servicer and
Special Servicer............................................
Section 6.04
Resignation of Master Servicer and the Special Servicer......
Section 6.05 Rights of
Depositor and Trustee in Respect of the Master
Servicer and the Special Servicer...........................
Section 6.06
Depositor, Master Servicer and Special Servicer to Cooperate
with
Trustee................................................
Section 6.07
Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer.............................................
Section 6.08
Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer............................................
Section 6.09
Termination and Designation of Special Servicer by the
Directing Holder............................................
Section 6.10 Master
Servicer or Special Servicer as Owner of a
Certificate.................................................
Section 6.11 Certain
Powers of the Controlling Class Representative.......
ARTICLE VII
DEFAULT
Section 7.01 Events of
Default............................................
Section 7.02 Trustee
to Act; Appointment of Successor.....................
Section 7.03
Notification to Certificateholders...........................
Section 7.04 Waiver of
Events of Default..................................
Section 7.05
Additional Remedies of Trustee Upon Event of Default.........
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of
Trustee............................................
Section 8.02 Certain
Matters Affecting Trustee............................
Section 8.03 Trustee
Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans..............................
Section 8.04 Trustee
May Own Certificates.................................
Section 8.05 Fees and
Expenses of Trustee; Indemnification of and
by Trustee..................................................
Section 8.06
Eligibility Requirements for Trustee.........................
Section 8.07
Resignation and Removal of Trustee...........................
Section 8.08 Successor
Trustee............................................
Section 8.09 Merger or
Consolidation of Trustee...........................
Section 8.10
Appointment of Co-Trustee or Separate Trustee................
Section 8.11
Appointment of Custodians....................................
Section 8.12
Appointment of Authenticating Agents.........................
Section 8.13
Appointment of Tax Administrators............................
Section 8.14 Access to
Certain Information................................
Section 8.15
[Reserved.]..................................................
Section 8.16
Representations and Warranties of Trustee....................
ARTICLE IX
TERMINATION
Section 9.01
Termination Upon Repurchase or Liquidation of All Mortgage
Loans.......................................................
Section 9.02
Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC
Administration.........................................
ARTICLE XI
EXCHANGE ACT REPORTING
Section 11.01 Intent of the Parties;
Reasonableness........................
Section 11.02 Succession;
Subcontractors...................................
Section 11.03 Filing
Obligations...........................................
Section 11.04 Form 10-D
Filings............................................
Section 11.05 Form 10-K
Filings............................................
Section 11.06 Sarbanes-Oxley
Certification.................................
Section 11.07 Form 8-K
Filings.............................................
Section 11.08 Form 15
Filing...............................................
Section 11.09 Annual Compliance
Statements.................................
Section 11.10 Annual Reports on Assessment of Compliance with
Servicing
Criteria....................................................
Section 11.11 Annual Independent Public Accountants' Servicing
Report......
Section 11.12
Indemnification..............................................
Section 11.13
Amendments...................................................
Section 11.14 Regulation AB
Notices........................................
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01
Amendment....................................................
Section 12.02 Recordation of Agreement;
Counterparts.......................
Section 12.03 Limitation on Rights of
Certificateholders...................
Section 12.04 Governing Law; Consent to
Jurisdiction.......................
Section 12.05
Notices......................................................
Section 12.06 Severability of
Provisions...................................
Section 12.07 Grant of a Security
Interest.................................
Section 12.08 Streit
Act...................................................
Section 12.09 Successors and Assigns;
Beneficiaries........................
Section 12.10 Article and Section
Headings.................................
Section 12.11 Notices to Rating
Agencies...................................
Section 12.12 Global
Opinions..............................................
Section 12.13 Complete
Agreement...........................................
<PAGE>
SCHEDULES AND EXHIBITS
Schedule No. Schedule
Description
------------
--------------------
I
Mortgage Loan Schedule
II
Schedule of Exceptions to Mortgage File Delivery
III
Environmentally Insured Mortgage Loans
IV
Class XP Reference Rate Schedule
V
[Reserved]
VI
Supplemental Servicer Schedule
VII
Primary
Serviced Mortgage Loans
VIII
[Reserved]
Exhibit No.
Exhibit
Description
-----------
-------------------
A-1
Form of
Class [A-1] [A-2] [A-3] Certificate
A-2
Form of
Class [XP] [XC] Certificate
A-3
Form of
Class [A-4] [B] [C] [D] [E] Certificate
A-4
Form of
Class [F] [G] [H] Certificate
A-5
[Reserved]
A-6
Form of
Class [J] [K] [L] [M] [N] [O] [P] Certificate
A-7
Form of
Class [R-I] [R-II] Certificate
B
Form
of Distribution Date Statement
C
Form
of Custodial Certification
D-1
Form of
Master Servicer Request for Release
D-2
Form of
Special Servicer Request for Release
E
Form
of Mortgage Loan Payoff Notification Report
F-1
Form of
Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A
Form I of
Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B
Form II of
Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C
Form of
Transferee Certificate for Transfers of Interests in Rule
144A Global Certificates
F-2D
Form of
Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
G
Form
I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
H-1
Form of
Transfer Affidavit and Agreement regarding Residual
Interest Certificates
H-2
Form of
Transferor Certificate regarding Residual Interest
Certificates
I-1
Form of
Notice and Acknowledgment
I-2
Form of
Acknowledgment of Proposed Special Servicer
J
Reserved
K
Sub-Servicers in respect of which Sub-Servicing Agreements are
in
effect or being negotiated as of the Closing Date
L
Form
of Defeasance Certification
M
Form
of Sarbanes-Oxley Certification
N-1
Form of
Certification to be Provided to Depositor by the Trustee
N-2
Form of
Certification to be Provided to Depositor by the Master
Servicer
N-3
Form of
Certification to be Provided to Depositor by the Special
Servicer
O
Servicing Criteria to be Addressed in Assessment of Compliance
P
Additional Form 10-D Disclosure
Q
Additional Form 10-K Disclosure
R
Form
8-K Disclosure
S
Form
of Additional Disclosure Information
T
Servicing and Subservicing Agreements
U
Form
Certification to be Provided with Form 10-K
<PAGE>
This Pooling and Servicing Agreement (this "Agreement") is dated
and
effective as of [________], 200_, among CWCAPITAL COMMERCIAL
FUNDING CORP., as
Depositor, [______] as Master Servicer, [______], as Special
Servicer, and
[______], as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be
issued hereunder in multiple Classes and which in the aggregate
will evidence
the entire beneficial ownership interest in the Trust Fund.
CERTIFICATES
Original Class
Approx.
Principal Balance
Initial
(or Notional
Class
Pass-Through Rate
Amount)
Original Rating
Designation
(per annum) at Initial
Issuance
[____]/[____] (1)
-----------
-----------
------------------- -----------------
[Class A-1
[________]%
$[________]
[____]/[____]
Class A-2
[________]%
$[________]
[____]/[____]
Class A-3
[________]%
$[________]
[____]/[____]
Class A-4
[________]%
$[________]
[____]/[____]
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 XP
[________]%(2)
$[________](3)
[____]/[____]
Class XC
[________]%(2)
$[________](3)
[____]/[____]
Class R-I
N/A(4)
N/A(4)
[NR/NR]
Class R-II
N/A(4)
N/A(4)
[NR/NR]
------------------
(1) "NR"
indicates that the Class of Certificates has not been rated by
the
applicable
Rating Agency.
(2) The
Pass-Through Rates for the Class XP and Class XC Certificates will
be
a variable
rate per annum as set forth herein.
(3) The Class XP
and Class XC Certificates will not have a Class Principal
Balance
and will not entitle their Holders to receive distributions of
principal.
The Class XP and Class XC Certificates will each have a
Notional
Amount as set forth herein.
(4) The Class
R-I Certificates and Class R-II Certificates do not have a
Class
Principal
Balance or Notional Amount, do not bear interest and will not
be
entitled
to distributions of Net Prepayment Consideration. Any Available
Distribution Amount remaining in the Lower-Tier Distribution
Account after
distributing the Lower-Tier Distribution Amount and Net
Prepayment
Consideration shall be distributed to the Holders of the Class
R-I
Certificates (but only to the extent of the Available Distribution
Amount
for such
Distribution Date, if any, remaining in the Lower-Tier
Distribution Account). Any Available Distribution Amount remaining
in the
Upper-Tier
Distribution Account, after all required distributions under
this
Agreement have been made to each other Class of Certificates, will
be
distributed to the Holders of the Class R-II Certificates.
As provided herein, the Trustee will elect to treat the
segregated
pool of assets consisting of all of the Mortgage Loans and certain
other related
assets subject to this Agreement as a REMIC for federal income tax
purposes, and
such segregated pool of assets will be designated as the
"Lower-Tier REMIC." The
Class R-I Certificates will represent the sole class of "residual
interests" in
the Lower-Tier REMIC for purposes of the REMIC Provisions under
federal income
tax law.
As provided herein, the Trustee will elect to treat the
segregated
pool of assets consisting of the Uncertificated Lower-Tier
Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets
will be
designated as the "Upper-Tier REMIC." The Class R-II Certificates
will evidence
the sole class of "residual interests" in the Upper-Tier REMIC for
purposes of
the REMIC Provisions under federal income tax law. For federal
income tax
purposes, each Class of the Regular Interest Certificates will be
designated as
a separate "regular interest" in the Upper-Tier REMIC for purposes
of the REMIC
Provisions under federal income tax law.
The following table sets forth the Class or Component
designation,
the corresponding Uncertificated Lower-Tier Interest (the
"Corresponding
Uncertificated Lower-Tier Interest"), the corresponding components
of the Class
X Certificates (the "Corresponding Components"), if any, and the
Original Class
Principal Balance for each Class of Principal Balance Certificates
(the
"Corresponding Certificates").
Corresponding Original
Corresponding
Original Class
Uncertificated Lower-Tier
Components of
Corresponding
Principal
Lower-Tier
Principal
Class X
Certificates
Balance
Interests(1)
Amount
Certificates(1)
------------
-------
------------
------
---------------
[Class A-1]
$[________]
[LA-1-1]
$[________]
[X-A-1-1]
[LA-1-2]
$[________]
[X-A-1-2]
[Class A-2]
$[________]
[LA-2-1]
$[________]
[X-A-2-1]
[LA-2-2]
$[________]
[X-A-2-2]
[LA-2-3]
$[________]
[X-A-2-3]
[LA-2-4]
$[________]
[X-A-2-4]
[LA-2-5]
$[________]
[X-A-2-5]
[LA-2-6]
$[________]
[X-A-2-6]
[LA-2-7]
$[________]
[X-A-2-7]
[Class A-3]
$[________]
[LA-3-1] $[________]
[X-A-3-1]
[LA-3-2]
$[________]
[X-A-3-2]
[LA-3-3]
$[________]
[X-A-3-3]
[LA-3-4]
$[________]
[X-A-3-4]
[LA-3-5]
$[________]
[X-A-3-5]
[Class A-4]
$[________]
[LA-4-1]
$[________]
[X-A-4-1]
[LA-4-2]
$[________]
[X-A-4-2]
[Class B]
$[________]
[LB]
$[________]
[X-B]
[Class C]
$[________]
[LC]
$[________]
[X-C]
[Class D]
$[________]
[LD-1]
$[________]
[X-D-1]
[LD-2]
$[________]
[X-D-2]
[LD-3]
$[________]
[X-D-3]
[LD-4]
$[________]
[X-D-4]
[LD-5]
$[________]
[X-D-5]
[Class E]
$[________]
[LE-1]
$[________]
[X-E-1]
[LE-2]
$[________]
[X-E-2]
[Class F]
$[________]
[LF-1]
$[________]
[X-F-1]
[LF-2]
$[________]
[X-F-2]
[LF-3]
$[________]
[X-F-3]
[Class G]
$[________]
[LG-1]
$[________]
[X-G-1]
[LG-2]
$[________]
[X-G-2]
[Class H]
$[________]
[LH-1]
$[________]
[X-H-1]
[LH-2]
$[________]
[X-H-2]
[Class J]
$[________]
[LJ]
$[________]
[X-J]
[Class K]
$[________]
[LK-1]
$[________]
[X-K-1]
[LK-2]
$[________]
[X-K-2]
[Class L]
$[________]
[LL]
$[________]
[X-L]
[Class M]
$[________]
[LM]
$[________]
[X-M]
[Class N]
$[________]
[LN]
$[________]
[X-N]
[Class O]
$[________]
[LO]
$[________]
[X-O]
[Class P]
$[________]
[LP]
$[________]
[X-P]
------------------
(1) The Uncertificated Lower-Tier
Interest and the Components of the Class X
Certificates that correspond to any particular Class of Principal
Balance
Certificates also correspond to each other and, accordingly,
constitute
the
"Corresponding Uncertificated Lower-Tier Interest" and the
"Corresponding Components," respectively, with respect to each
other.
The initial aggregate principal balance of the Uncertificated
Lower-Tier Interests will be $[________].
Capitalized terms used but not otherwise defined in this
Preliminary
Statement have the respective meanings assigned thereto in Section
1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer and the
Trustee hereby
agree, in each case, as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"ABN AMRO" shall mean ABN AMRO Bank N.V. or its successor in
interest.
"Affiliate" means, with respect to any specified Person, any
other
Person controlling or controlled by or under common control with
such specified
Person. For the purposes of this definition, "control" when used
with respect to
any specified Person means the power to direct the management and
policies of
such Person, directly or indirectly, whether through the ownership
of voting
securities, by contract or otherwise; and the terms "controlling"
and
"controlled" have meanings correlative to the foregoing.
"Acceptable Insurance Default" shall mean, with respect to any
Mortgage Loan, any default under the related Loan documents
resulting from (a)
the exclusion of acts of terrorism from coverage under the related
all risk
casualty insurance policy maintained on the subject Mortgaged
Property and (b)
the related Mortgagor's failure to obtain insurance that
specifically covers
acts of terrorism, but only if the Special Servicer has determined,
in
accordance with the Servicing Standard, that either (i) such
insurance is not
available at commercially reasonable rates and the subject hazards
are not
commonly insured against by prudent owners of similar real
properties in similar
locales (but only by reference to such insurance that has been
obtained by such
owners at current market rates), or (ii) such insurance is not
available at any
rate. Subject to the Servicing Standard, in making any of the
determinations
required in subclause (i) or (ii) of this definition, the Special
Servicer shall
be entitled to rely on the opinion of an insurance consultant.
"Accrued Certificate Interest" shall mean the interest accrued
from
time to time with respect to any Class of Regular Interest
Certificates, the
amount of which interest shall equal: (a) in the case of any Class
of Principal
Balance Certificates for any Interest Accrual Period, one-twelfth
of the product
of (i) the Pass-Through Rate applicable to such Class of
Certificates for such
Interest Accrual Period, multiplied by (ii) the Class Principal
Balance of such
Class of Certificates outstanding immediately prior to the related
Distribution
Date; and (b) in the case of each Class of the Class X Certificates
for any
Interest Accrual Period, the sum of the Accrued Component Interest
for all of
the Components of such Class for such Distribution Date.
"Accrued Component Interest" shall mean, with respect to each
Component of the Class XP and Class XC Certificates for any
Distribution Date,
one-twelfth of the product of (i) the Class XP Strip Rate or Class
XC Strip Rate
applicable to such Component for such Distribution Date, and (ii)
the Component
Notional Amount of such Component outstanding immediately prior to
such
Distribution Date.
"Acquisition Date" shall mean, with respect to any REO Property,
the
first day on which such REO Property is considered to be acquired
by the Trust
Fund within the meaning of Treasury Regulations Section
1.856-6(b)(1), which
shall be the first day on which the Trust Fund is treated as the
owner of such
REO Property for federal income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated
on
the basis of the actual number of days elapsed during any interest
accrual
period in a year assumed to consist of 360 days.
"Additional Disclosure Notification" shall mean the form of
notification to be included with any Additional Form 10-D
Disclosure, Additional
Form 10-K Disclosure or Form 8 K Disclosure Information which is
attached hereto
as Exhibit S.
"Additional Form 10-D Disclosure" has the meaning set forth in
Section 11.04.
"Additional Form 10-K Disclosure" has the meaning set forth in
Section 11.05.
"Additional Information" shall have the meaning assigned thereto
in
Section 4.02(a).
"Additional Principal Distribution Amount" shall mean, with
respect
to any Distribution Date, the aggregate of the Recovered Amounts
included in,
and added to the Principal Distribution Amount for such
Distribution Date for
purposes of calculating, the Adjusted Principal Distribution Amount
for such
Distribution Date, pursuant to Section 1.03(c).
"Additional Servicer" means each Affiliate of the Master
Servicer
that Services any of the Mortgage Loans and each Person who is not
an Affiliate
of the Master Servicer, other than the Special Servicer or the
Trustee, who
Services 10% or more of the Mortgage Loans by unpaid balance
calculated in
accordance with the provisions of Regulation AB.
"Additional Trust Fund Expense" shall mean any expense incurred
with
respect to the Trust Fund (excluding any Unliquidated Advance) and
not otherwise
included in the calculation of a Realized Loss that would result in
the Holders
of Regular Interest Certificates receiving less than the full
amount of
principal and/or Distributable Certificate Interest to which they
are entitled
on any Distribution Date. Amounts paid as Additional Trust Fund
Expenses shall
be paid out of funds on deposit in the Custodial Account or the
Distribution
Account.
"Adjusted Principal Distribution Amount" shall mean, for any
Distribution Date, an amount equal to the Principal Distribution
Amount for such
Distribution Date, plus all amounts added to such Principal
Distribution Amount
pursuant to Section 1.03(c) for such Distribution Date, minus all
amounts
subtracted from such Principal Distribution Amount pursuant to
Section 1.03(b)
for such Distribution Date.
"Administrative Cost Rate" shall mean, with respect to each
Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto), the
rate per
annum specified as the "Administrative Cost Rate" on the Mortgage
Loan Schedule,
which, for each such other Mortgage Loan (or successor REO Mortgage
Loan) is
equal to the sum of the related Master Servicing Fee Rate and the
Trustee Fee
Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse Rating Event" shall mean, when used with respect to
any
Class of Certificates, as of any date of determination, the
qualification,
downgrade or withdrawal of any rating then assigned to such Class
of
Certificates by any Rating Agency.
"Adverse REMIC Event" shall have the meaning assigned thereto
in
Section 10.01(i).
"Affiliate" shall mean, with respect to any specified Person,
any
other Person controlling or controlled by or under common control
with such
specified Person. For the purposes of this definition, "control,"
when used with
respect to any specified Person, means the power to direct the
management and
policies of such Person, directly or indirectly, whether through
the ownership
of voting securities, by contract or otherwise, and the terms
"controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement,
together with all amendments hereof and supplements hereto.
"Appraisal" shall mean an appraisal or update thereof prepared by
an
Independent Appraiser.
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount (calculated initially as of the
Determination
Date immediately following the later of the date on which the
subject Mortgage
Loan became a Required Appraisal Loan and the date on which the
applicable
Required Appraisal was obtained) equal to the excess, if any, of:
(a) the sum
of, without duplication, (i) the Stated Principal Balance of such
Required
Appraisal Loan, (ii) to the extent not previously advanced by or on
behalf of
the Master Servicer or the Trustee, all unpaid interest on such
Required
Appraisal Loan through the most recent Due Date prior to the date
of calculation
(exclusive of any portion thereof that represents Default
Interest), (iii) all
accrued and unpaid Special Servicing Fees, Liquidation Fees and
Workout Fees in
respect of such Required Appraisal Loan, (iv) all related
unreimbursed Advances
(which shall include, without duplication, (1) any Advances as to
which the
advancing party was reimbursed from a source other than the related
Mortgagor
and (2) any Unliquidated Advances) made by or on behalf of (plus
all accrued
interest on such Advances payable to) the Master Servicer, the
Special Servicer
and/or the Trustee with respect to such Required Appraisal Loan,
(v) any other
unpaid Additional Trust Fund Expenses in respect of such Required
Appraisal
Loan, and (vi) all currently due and unpaid real estate taxes and
assessments,
insurance premiums and, if applicable, ground rents, and any
unfunded
improvement or other applicable reserves, in respect of the related
Mortgaged
Property or REO Property, as the case may be (in each case, net of
any amounts
escrowed with the Master Servicer or the Special Servicer for such
items); over
(b) the Required Appraisal Value. Notwithstanding the foregoing, if
(i) any
Mortgage Loan becomes a Required Appraisal Loan, (ii) either (A) no
Required
Appraisal or update thereof has been obtained or conducted, as
applicable, in
accordance with Section 3.09(a), with respect to the related
Mortgaged Property
during the 12-month period prior to the date such Mortgage Loan
became a
Required Appraisal Loan or (B) there shall have occurred since the
date of the
most recent Required Appraisal or update thereof a material change
in the
circumstances surrounding the related Mortgaged Property that
would, in the
Special Servicer's reasonable judgment, materially affect the value
of the
related Mortgaged Property, and (iii) no new Required Appraisal is
obtained or
conducted, as applicable, in accordance with Section 3.09(a),
within 60 days
after such Mortgage Loan became a Required Appraisal Loan, then (x)
until such
new Required Appraisal is obtained or conducted, as applicable, in
accordance
with Section 3.09(a), the Appraisal Reduction Amount shall equal
25% of the
Stated Principal Balance of such Required Appraisal Loan, and (y)
upon receipt
or performance, as applicable, in accordance with Section 3.09(a),
of such
Required Appraisal or update thereof by the Special Servicer, the
Appraisal
Reduction Amount for such Required Appraisal Loan shall be
recalculated in
accordance with the preceding sentence of this definition. For
purposes of this
definition, each Required Appraisal Loan that is part of a
Cross-Collateralized
Group shall be treated separately for the purposes of calculating
any Appraisal
Reduction Amount.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or REO Property, the appraised value thereof based upon
the most recent
appraisal or update thereof prepared by an Independent Appraiser
that is
contained in the related Servicing File or, in the case of any such
property
with or that had, as the case may be, an allocated loan amount of,
or securing a
Mortgage Loan or relating to an REO Loan, as the case may be, with
a Stated
Principal Balance of, less than $2,000,000, either (a) the most
recent appraisal
or update thereof that is contained in the related Servicing File
or (b) the
most recent "desktop" value estimate performed by the Special
Servicer that is
contained in the related Servicing File.
"Assignment of Leases" shall mean, with respect to any
Mortgaged
Property, any assignment of leases, rents and profits or similar
document or
instrument executed by the Mortgagor in connection with the
origination of the
related Mortgage Loan.
"Assumed Monthly Payment" shall mean: (a) with respect to any
Balloon Mortgage Loan delinquent in respect of its Balloon Payment,
for each Due
Date coinciding with or following its Stated Maturity Date as of
which such
Mortgage Loan remains outstanding and part of the Trust Fund
(provided that such
Mortgage Loan was not paid in full, and no other Liquidation Event
occurred in
respect thereof, before the end of the Collection Period in which
the related
Stated Maturity Date occurs), the scheduled monthly payment of
principal and/or
interest deemed to be due in respect of such Mortgage Loan on such
Due Date
equal to the amount that would have been due in respect thereof on
such Due Date
if such Mortgage Loan had been required to continue to accrue
interest (other
than Default Interest) in accordance with its terms, and to pay
principal in
accordance with the amortization schedule (if any) in effect
immediately prior
to, and without regard to the occurrence of, the related Stated
Maturity Date;
(b) with respect to any REO Loan, for any Due Date as of which the
related REO
Property remains part of the Trust Fund, or the scheduled monthly
payment of
principal and/or interest deemed to be due in respect thereof on
such Due Date
equal to the Monthly Payment (or, in the case of a Balloon Loan
described in
clause (a) of this definition, the Assumed Monthly Payment) that
was due (or
deemed due) in respect of the related Mortgage Loan on the last Due
Date prior
to its becoming an REO Loan.
"ASTM" shall mean the American Society for Testing and
Materials.
"Authenticating Agent" shall mean any authenticating agent
appointed
pursuant to Section 8.12 (or, in the absence of any such
appointment, the
Trustee).
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to: (a) the sum, without
duplication, of the
following amounts (i) the aggregate amount of all payments and
other collections
on or with respect to the Mortgage Loans and any REO Properties and
(B) are on
deposit in the Distribution Account as of 12:00 noon (New York City
time) on
such Distribution Date, (ii) the aggregate amount of any P&I
Advances made by
the Master Servicer or the Trustee for distribution on the
Certificates on such
Distribution Date pursuant to Section 4.03, (iii) the aggregate
amount deposited
by the Master Servicer in the Distribution Account for such
Distribution Date
pursuant to Section 3.20(a) in connection with Prepayment Interest
Shortfalls,
(iv) to the extent not included in clause (a)(i) of this
definition, the
aggregate amount transferred from the Excess Liquidation Proceeds
Account to the
Distribution Account pursuant to Section 3.05(d) in respect of such
Distribution
Date and (v) to the extent not included in the amount described in
clause (a)(i)
of this definition, if such Distribution Date occurs during March
[_____] or any
year thereafter, the aggregate of the Interest Reserve Amounts
transferred from
the Interest Reserve Account to the Distribution Account in respect
of the
Interest Reserve Mortgage Loans and any Interest Reserve REO
Mortgage Loans for
distribution on such Distribution Date; net of (b) the portion of
the aggregate
amount described in clause (a) of this definition that represents
one or more of
the following: (i) Monthly Payments that are due on a Due Date
following the end
of the related Collection Period, (ii) any amounts payable or
reimbursable to
any Person from the Distribution Account pursuant to clauses (ii)
through (vii)
of Section 3.05(b), (iii) Prepayment Premiums and/or Yield
Maintenance Charges,
(iv) if such Distribution Date occurs during January of any year
that is not a
leap year or during February of any 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 into
the Interest Reserve Account in respect of such Distribution Date
and held for
future distribution, all pursuant to Section 3.04(c), and (v)
amounts deposited
in the Distribution Account in error; provided that clauses (b)(i),
(b)(iii) and
(b)(iv) of this definition shall not apply on the Final
Distribution Date.
"Balloon Loan" shall mean any Mortgage Loan that by its
original
terms or by virtue of any modification entered into as of the
Closing Date
provides for an amortization schedule extending beyond its Stated
Maturity Date
and as to which, in accordance with such terms, the payment due on
its Stated
Maturity Date is significantly larger than the Monthly Payment due
on the Due
Date preceding its Stated Maturity Date.
"Balloon Payment" shall mean, with respect to any Balloon Loan as
of
any date of determination, the payment, other than any regularly
scheduled
monthly payment, due with respect to such Mortgage Loan at
maturity.
"Bid Allocation" shall mean, with respect to the Master Servicer
or
any Sub-Servicer and the proceeds of any bid pursuant to Section
7.01(c), the
amount of such proceeds (net of any expenses incurred in connection
with such
bid and the transfer of servicing), multiplied by a fraction equal
to (a) the
Servicer Fee Amount for the Master Servicer or such Sub-Servicer,
as the case
may be, as of such date of determination, over (b) the aggregate of
the Servicer
Fee Amounts for the Master Servicer and all of the Sub-Servicers as
of such date
of determination.
"Book-Entry Certificate" shall mean any Certificate registered
in
the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate that constitutes a Book-Entry
Certificate.
"Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday
or
a day on which banking institutions in New York, New York, or in
any of the
cities in which the Corporate Trust Office of the Trustee, the
Primary Servicing
Office of the Master Servicer, the Primary Servicer or the Special
Servicer are
located, are authorized or obligated by law or executive order to
remain closed.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificates" shall mean any of the [Class A-1, Class A-2,
Class
A-3, Class A-4, Class XP, Class XC, 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 R-I or Class R-II] Certificates, as applicable.
"Certificate Factor" shall mean, with respect to any Class of
Regular Interest Certificates, as of any date of determination, a
fraction,
expressed as a decimal carried to at least six places, the
numerator of which is
the then current Class Principal Balance or Notional Amount, as the
case may be,
of such Class of Regular Interest Certificates, and the denominator
of which is
the Original Class Principal Balance or initial Notional Amount, as
the case may
be, of such Class of Regular Interest Certificates.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such
Certificate as
reflected on the books of the Depository or on the books of a
Depository
Participant or on the books of an indirect participating brokerage
firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the
then
outstanding principal balance of such Certificate equal to the
product of (a)
the then Certificate Factor for the Class of Principal Balance
Certificates to
which such Certificate belongs, multiplied by (b) the amount
specified on the
face of such Certificate as the initial Certificate Principal
Balance thereof.
"Certificate Register" shall mean the register maintained
pursuant
to Section 5.02.
"Certificate Registrar" shall mean the registrar appointed
pursuant
to Section 5.02.
"Certificateholder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, except that:
(i) neither
a Disqualified Organization nor a Disqualified Non-United States
Tax Person
shall be Holder of a Residual Interest Certificate for any purpose
hereof; and
(ii) solely for the purposes of giving any consent, approval or
waiver pursuant
to this Agreement that relates to the rights and/or obligations of
any of the
Depositor, the Master Servicer, the Special Servicer or the Trustee
in its
respective capacity as such, any Certificate registered in the name
of the
Depositor, the Master Servicer, the Special Servicer or the
Trustee, as the case
may be, or any Certificate registered in the name of any of its
Affiliates,
shall be deemed not to be outstanding, and the Voting Rights to
which it is
entitled shall not be taken into account in determining whether the
requisite
percentage of Voting Rights necessary to effect any such consent,
approval or
waiver that relates to it has been obtained. The Certificate
Registrar shall be
entitled to request and rely upon a certificate of the Depositor,
the Master
Servicer or the Special Servicer in determining whether a
Certificate is
registered in the name of an Affiliate of such Person. All
references herein to
"Certificateholders" shall reflect the rights of Certificate Owners
as they may
indirectly exercise such rights through the Depository and the
Depository
Participants, except as otherwise specified herein; provided,
however, that the
parties hereto shall be required to recognize as a
"Certificateholder" only the
Person in whose name a Certificate is registered in the Certificate
Register.
"Certificateholder Reports" shall mean, collectively, the
Distribution Date Statement, the Mortgage Pool Data Update Report,
the Mortgage
Loan Payoff Notification Report and the CMSA Investor Reporting
Package.
"Certification Parties" shall have the meaning assigned thereto
in
Section 11.06.
"Certifying Person" shall have the meaning assigned thereto in
Section 11.06.
"Certifying Servicer" shall have the meaning assigned thereto
in
Section 11.09.
"Class" shall mean, collectively, all of the Certificates
bearing
the same alphabetical and, if applicable, numerical class
designation.
"Class A Certificates" shall mean the [Class A-1, Class A-2,
Class
A-3 and Class A-4] Certificates.
"Class A-1 Certificate" shall mean any one of the Certificates
with
a "Class A-1" designation on the face thereof, substantially in the
form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class A-2 Certificate" shall mean any one of the Certificates
with
a "Class A-2" designation on the face thereof, substantially in the
form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class A-3 Certificate" shall mean any one of the Certificates
with
a "Class A-3" designation on the face thereof, substantially in the
form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class A-4 Certificate" shall mean any one of the Certificates
with
a "Class A-4" designation on the face thereof, substantially in the
form of
Exhibit A-3 attached hereto, and evidencing a portion of a class of
"regular
interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class B Certificate" shall mean any one of the Certificates with
a
"Class B" designation on the face thereof, substantially in the
form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Certificate" shall mean any one of the Certificates with
a
"Class C" designation on the face thereof, substantially in the
form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Certificate" shall mean any one of the Certificates with
a
"Class D" designation on the face thereof, substantially in the
form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Certificate" shall mean any one of the Certificates with
a
"Class E" designation on the face thereof, substantially in the
form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates with
a
"Class F" designation on the face thereof, substantially in the
form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Certificate" shall mean any one of the Certificates with
a
"Class G" designation on the face thereof, substantially in the
form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Certificate" shall mean any of the Certificates with a
"Class H" designation on the face thereof, substantially in the
form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Certificate" shall mean any one of the Certificates with
a
"Class J" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K
Certificate" shall mean any of the Certificates with a
"Class K" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Certificate" shall mean any of the Certificates with a
"Class L" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class LA-1-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-1-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-2-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-2-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-2-3 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-2-4 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-2-5 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-2-6 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-2-7 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-3-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-3-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-3-3 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-3-4 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-3-5 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-4-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LA-4-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LB Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LC Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LD-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LD-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LD-3 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LD-4 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LD-5 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LE-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LE-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LF-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LF-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LF-3 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LG-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LG-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LH-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LH-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LJ Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LK-1 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LK-2 Interest" shall mean a regular interest in the
Lower-Tier REMIC which is held as an asset of the Upper-Tier REMIC
and having
the Original Lower-Tier Principal Amount and per annum rate of
interest set
forth in the Preliminary Statement hereto.
"Class LL Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LM Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LN Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LO Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class LP Interest" shall mean a regular interest in the
Lower-Tier
REMIC which is held as an asset of the Upper-Tier REMIC and having
the Original
Lower-Tier Principal Amount and per annum rate of interest set
forth in the
Preliminary Statement hereto.
"Class M Certificate" shall mean any of the Certificates with a
"Class M" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Certificate" shall mean any of the Certificates with a
"Class N" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class O Certificate" shall mean any of the Certificates with a
"Class O" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Certificate" shall mean any of the Certificates with a
"Class P" designation on the face thereof, substantially in the
form of Exhibit
A-6 attached hereto, and evidencing a portion of a class of
"regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class Principal Balance" shall mean the aggregate principal
balance
of any Class of Principal Balance Certificates outstanding as of
any date of
determination. As of the Closing Date, the Class Principal Balance
of each Class
of Principal Balance Certificates shall equal the Original Class
Principal
Balance thereof. On each Distribution Date, the Class Principal
Balance of each
Class of Principal Balance Certificates shall be permanently
reduced by the
amount of any distributions of principal made thereon on such
Distribution Date
pursuant to Section 4.01 or 9.01, as applicable, and shall be
further
permanently reduced (subject to Section 4.05) by the amount of any
Realized
Losses and Additional Trust Fund Expenses deemed allocated thereto
on such
Distribution Date pursuant to Section 4.04(a). On each Distribution
Date, the
Class Principal Balance of each Class of Principal Balance
Certificates shall be
increased by the related Class Principal Reinstatement Amount, if
any, for such
Distribution Date.
"Class Principal Reinstatement Amount" shall have the meaning
assigned thereto in Section 4.05(a).
"Class R-I Certificate" shall mean any one of the Certificates
with
a "Class R-I" designation on the face thereof, substantially in the
form of
Exhibit A-7 attached hereto, and evidencing a portion of the sole
class of
"residual interests" in the Lower-Tier REMIC for purposes of the
REMIC
Provisions.
"Class R-II Certificate" shall mean any one of the Certificates
with
a "Class R-II" designation on the face thereof, substantially in
the form of
Exhibit A-7 attached hereto, and evidencing a portion of the sole
class of
"residual interests" in the Upper-Tier REMIC for purposes of the
REMIC
Provisions.
"Class X Certificates" shall mean the Class XP Certificates and
the
Class XC Certificates.
"Class XC Certificate" shall mean any one of the Certificates with
a
"Class XC" designation on the face thereof, substantially in the
form of Exhibit
A-2 attached hereto, and evidencing the Components and a portion of
a class of
"regular interests" in the Upper-Tier REMIC for purposes of the
REMIC
Provisions.
"Class XC Notional Amount" shall mean, with respect to the Class
XC
Certificates and any date of determination, the sum of the then
Component
Notional Amounts of all of the Components.
"Class XC Strip Rate" shall mean, with respect to (A) any Class
of
Components (other than the Class XP Components) for any
Distribution Date, a
rate per annum equal to (i) the Weighted Average Net Mortgage Rate
for such
Distribution Date, minus (ii) the Pass-Through Rate for the
Corresponding
Certificates and (B) the Class XP Components (i) for any
Distribution Date
occurring on or before the related Class XP Component Crossover
Date, (x) the
Weighted Average Net Mortgage Rate for such Distribution Date minus
(y) the sum
of the Pass-Through Rate for the Corresponding Certificates for
such
Distribution Date and the Class XP Strip Rate for such Component
for such
Distribution Date, and (ii) for any Distribution Date occurring
after the
related Class XP Component Crossover Date, a rate per annum equal
to (x) the
Weighted Average Net Mortgage Rate for such Distribution Date,
minus (y) the
Pass-Through Rate for the Corresponding Certificates. In no event
shall any
Class XC Strip Rate be less than zero.
"Class XP Certificate" shall mean any one of the Certificates with
a
"Class XP" designation on the face thereof, substantially in the
form of Exhibit
A-2 attached hereto, and evidencing the Class XP Components and a
portion of a
class of "regular interests" in the Upper-Tier REMIC for purposes
of the REMIC
Provisions.
"Class XP Component Crossover Date" [shall mean (i) with respect
to
Component X-A-1-2, Component X-A-2-1, the Distribution Date
occurring in
[________], (ii) with respect to Component X-A-2-2, Component X-K-1
and
Component X-L the Distribution Date occurring in [________], (iii)
with respect
to Component X-A-2-3, Component X-H-1, Component X-J and Component
X-K-2, the
Distribution Date occurring in [________], (iv) with respect to
Component
X-A-2-4, Component X-G-1, Component X-H-2, the Distribution Date
occurring in
[________], (v) with respect to Component X-A-2-5, Component X-F-1
and Component
X-G-2, the Distribution Date occurring in [________], (vi) with
respect to
Component X-A-2-6 and Component X-F-2, the Distribution Date
occurring in
[________], (vii) with respect to Component X-A-2-7, Component
X-A-3-1,
Component X-E-1 and Component X-F-3, the Distribution Date
occurring in
[________], (viii) with respect to Component X-A-3-2, Component
X-D-1 and
Component X-E-2, the Distribution Date occurring in [________],
(ix) with
respect to Component X-A-3-3, Component X-D-2, the Distribution
Date occurring
in [________], (x) with respect to Component X-A-3-4 and Component
X-D-3, the
Distribution Date occurring in [________], (xi) with respect to
Component
X-A-3-5, Component X-A-4-1 and Component X-D-4, the Distribution
Date occurring
in [________], and (xii) with respect to Component X-A-4-2,
Component X-B,
Component X-C and Component X-D-5, the Distribution Date in
[--------].]
"Class XP Components" shall mean each of [Component X-A-1-2,
Component X-A-2-1, Component X-A-2-2, Component X-A-2-3, Component
X-A-2-4,
Component X-A-2-5, Component X-A-2-6, Component X-A-2-7, Component
X-A-3-1,
Component X-A-3-2, Component X-A-3-3, Component X-A-3-4, Component
X-A-3-5,
Component X-A-4-1, Component X-A-4-2, Component X-B, Component X-C,
Component
X-D-1, Component X-D-2, Component X-D-3, Component X-D-4, Component
X-D-5,
Component X-E-1, Component X-E-2, Component X-F-1, Component X-F-2,
Component
X-F-3, Component X-G-1, Component X-G-2, Component X-H-1, Component
X-H-2,
Component X-J, Component X-K-1, Component X-K-2 and Component
X-L].
"Class XP Notional Amount" shall mean, as of any date of
determination, the sum of the then Component Notional Amounts of
the Class XP
Components for which the Class XP Component Crossover Date has not
passed.
"Class XP Reference Rate" shall mean, for any Distribution Date,
the
rate per annum corresponding to such Distribution Date on Schedule
IV.
"Class XP Strip Rate" shall mean, with respect to each of the
Class
XP Components for any Distribution Date, a rate per annum equal to
(i) for any
Distribution Date occurring on or before the related Class XP
Component
Crossover Date, (x) the lesser of (I) the Weighted Average Net
Mortgage Rate for
such Distribution Date and (II) the Class XP Reference Rate for
such
Distribution Date minus (y) the Pass-Through Rate for the
Corresponding
Certificates (provided that in no event shall any Class XP Strip
Rate be less
than zero) and (ii) for any Distribution Date occurring after the
related Class
XP Component Crossover Date, 0% per annum.
"Clearstream" shall mean Clearstream Banking, Societe Anonyme or
any
successor.
"Closing Date" shall mean [__________ __], 200_.
"CMSA" shall mean the Commercial Mortgage Securities Association,
or
any association or organization that is a successor thereto. If
neither such
association nor any successor remains in existence, "CMSA" shall be
deemed to
refer to such other association or organization as may exist whose
principal
membership consists of servicers, trustees, issuers, placement
agents and
underwriters generally involved in the commercial mortgage loan
securitization
industry, which is the principal such association or organization
in the
commercial mortgage loan securitization industry and one of whose
principal
purposes is the establishment of industry standards for
reporting
transaction-specific information relating to commercial mortgage
pass-through
certificates and commercial mortgage-backed bonds and the
commercial mortgage
loans and foreclosed properties underlying or backing them to
investors holding
or owning such certificates or bonds, and any successor to such
other
association or organization. If an organization or association
described in one
of the preceding sentences of this definition does not exist,
"CMSA" shall be
deemed to refer to such other association or organization as shall
be selected
by the Master Servicer and reasonably acceptable to the Trustee,
the Special
Servicer and the Directing Holder.
"CMSA Advance Recovery Report" shall mean a report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Advance Recoverability Report" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA Bond Level File" shall mean the monthly report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Bond Level File" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA Collateral Summary File" shall mean the report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Collateral Summary File" available as of the Closing
Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "CMSA Comparative Financial Status Report"
available as
of the Closing Date on the CMSA Website, or such other form for the
presentation
of such information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally and, insofar
as it
requires the presentation of information in addition to that called
for by the
form of the "CMSA Comparative Financial Status Report" available as
of the
Closing Date on the CMSA Website, is reasonably acceptable to the
Master
Servicer or the Special Servicer, as applicable.
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "CMSA Delinquent Loan Status Report"
available as of
the Closing Date on the CMSA Website, or such other form for the
presentation of
such information and containing such additional information as may
from time to
time be approved by the CMSA for commercial mortgage securities
transactions
generally.
"CMSA Financial File" shall mean a report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Financial File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally. The initial
data for this
report shall be provided by each Mortgage Loan Seller.
"CMSA Historical Liquidation Report" shall mean a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Historical Liquidation Report" available
as of the
Closing Date on the CMSA Website, or such other form for the
presentation of
such information and containing such additional information as may
from time to
time be approved by the CMSA for commercial mortgage securities
transactions
generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" shall mean a report substantially in the form of, and
containing the
information called for in, the downloadable form of the "Historical
Loan
Modification and Corrected Mortgage Loan Report" available as of
the Closing
Date on the CMSA Website, or such other form for the presentation
of such
information and containing such additional information as may from
time to time
be approved by the CMSA for commercial mortgage securities
transactions
generally.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following seven electronic files: (i) CMSA Loan Setup
File,
(ii) CMSA
Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Bond Level
File, (v) CMSA Financial File, (vi) CMSA Collateral Summary
File and
(vii) CMSA Special Servicer Loan File; and
(b) the following twelve supplemental reports: (i) CMSA
Delinquent
Loan
Status Report, (ii) CMSA Historical Loan Modification and
Corrected
Mortgage
Loan Report, (iii) CMSA Historical Liquidation Report, (iv)
CMSA
REO Status
Report, (v) CMSA Operating Statement Analysis Report, (vi) CMSA
Comparative Financial Status Report, (vii) CMSA Servicer Watch
List,
(viii)
CMSA Loan Level Reserve/LOC Report, (ix) CMSA NOI Adjustment
Worksheet,
(x) CMSA Advance Recovery Report, (xi) CMSA Total Loan Report
and (xii)
CMSA Reconciliation of Funds Report.
"CMSA Loan Level Reserve/LOC Report" shall mean a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Loan Level Reserve/LOC Report" available
as of the
Closing Date on the CMSA Website, or such other form for the
presentation of
such information and containing such additional information as may
from time to
time be approved by the CMSA for commercial mortgage securities
transactions
generally.
"CMSA Loan Periodic Update File" shall mean the monthly report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Loan Periodic Update File" available as
of the Closing
Date on the CMSA Website, or such other form for the presentation
of such
information and containing such additional information as may from
time to time
be approved by the CMSA for commercial mortgage securities
transactions
generally. The initial data for this report shall be provided by
each Mortgage
Loan Seller. Each CMSA Loan Periodic Update File prepared by the
Master Servicer
shall, if applicable, be accompanied by a Monthly Additional Report
on
Recoveries and Reimbursements and all references herein to "CMSA
Loan Periodic
Update File" shall be construed accordingly.
"CMSA Loan Setup File" shall mean the report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Loan Setup File" available as of the Closing Date on the CMSA
Website, or
such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Reconciliation of Funds Report" shall mean a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "CMSA Reconciliation of Funds Report"
available as of
the Closing Date on the CMSA Website, or such other form for the
presentation of
such information and containing such additional information as may
from time to
time be approved by the CMSA for commercial mortgage securities
transactions
generally.
"CMSA Total Loan Report" shall mean a report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "CMSA Total Loan Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by
the
Master Servicer with respect to all the Performing Mortgage Loans,
and by the
Special Servicer with respect to Specially Serviced Mortgage Loans
and REO
Loans, which report shall be substantially in the form of, and
contain the
information called for in, the downloadable form of the "NOI
Adjustment
Worksheet" available as of the Closing Date on the CMSA Website, or
such other
form for the presentation of such information and containing such
additional
information as may from time to time be approved by the CMSA for
commercial
mortgage securities transactions generally.
"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "CMSA Operating Statement Analysis Report"
available as
of the Closing Date on the CMSA Website or in such other form for
the
presentation of such information and containing such additional
information as
may from time to time be approved by the CMSA for commercial
mortgage-backed
securities transactions generally.
"CMSA Property File" shall mean a report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Property File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA REO Status Report" shall mean a report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "REO Status Report" available as of the Closing Date on the
CMSA Website, or
in such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watch List" shall mean a report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Servicer Watch List" available as of the Closing Date on the
CMSA Website,
or in such other form for the presentation of such information and
containing
such additional information as may from time to time be approved by
the CMSA for
commercial mortgage securities transactions generally.
"CMSA Special Servicer Loan File" shall mean a report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Special Servicer Loan File" available as of the
Closing Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions
generally.
"CMSA Website" shall mean the CMSA's Website located at
"www.cmbs.org" or such other primary website as the CMSA may
establish for
dissemination of its report forms.
"Code" shall mean the Internal Revenue Code of 1986 and
regulations
promulgated thereunder, including temporary regulations and
proposed regulations
to the extent that, by reason of their proposed effective date,
could, as of the
date of any determination or opinion as to the tax consequences of
any action or
proposed action or transaction, be applied to the Certificates.
"Collection Period" shall mean, with respect to any
Distribution
Date or Master Servicer Remittance Date, the period commencing on
the day
immediately following the Determination Date in the calendar month
preceding the
month in which such Distribution Date or Master Servicer Remittance
Date, as the
case may be, occurs (or, in the case of each of the initial
Distribution Date
and the initial Master Servicer Remittance Date, commencing
immediately
following the Cut-off Date) and ending on and including the
Determination Date
in the calendar month in which such Distribution Date or Master
Servicer
Remittance Date, as the case may be, occurs.
"Commission" shall mean the United States Securities and
Exchange
Commission or any successor agency.
"Components" shall mean each of [Component X-A-1-1, Component
X-A-1-2, Component X-A-2-1, Component X-A-2-2, Component X-A-2-3,
Component
X-A-2-4, Component X-A-2-5, Component X-A-2-6, Component X-A-2-7,
Component
X-A-3-1, Component X-A-3-2, Component X-A-3-3, Component X-A-3-4,
Component
X-A-3-5, Component X-A-4-1, Component X-A-4-2, Component X-B,
Component X-C,
Component X-D-1, Component X-D-2, Component X-D-3, Component X-D-4,
Component
X-D-5, Component X-E-1, Component X-E-2, Component X-F-1, Component
X-F-2,
Component X-F-3, Component X-G-1, Component X-G-2, Component X-H-1,
Component
X-H-2, Component X-J, Component X-K-1, Component X-K-2, Component
X-L, Component
X-M, Component X-N, Component X-O and Component X-P].
"Component X-A-1-1" shall mean one of [________] components of
the
Class XC Certificates having a Component Notional Amount which, as
of any date
of determination, is equal to the then current Uncertificated
Principal Balance
of the Class LA-1-1 Interest.
"Component X-A-1-2" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-1-2 Interest.
"Component X-A-2-1" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-2-1 Interest.
"Component X-A-2-2" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-2-2 Interest.
"Component X-A-2-3" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-2-3 Interest.
"Component X-A-2-4" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-2-4 Interest.
"Component X-A-2-5" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-2-5 Interest.
"Component X-A-2-6" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-2-6 Interest.
"Component X-A-2-7" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-2-7 Interest.
"Component X-A-3-1" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-3-1 Interest.
"Component X-A-3-2" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-3-2 Interest.
"Component X-A-3-3" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-3-3 Interest.
"Component X-A-3-4" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-3-4 Interest.
"Component X-A-3-5" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-3-5 Interest.
"Component X-A-4-1" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-4-1 Interest.
"Component X-A-4-2" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LA-4-2 Interest.
"Component X-B" shall
mean one of [________] components of the Class
XC Certificates and one of the [________] components of the Class
XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LB Interest.
"Component X-C" shall mean one of [________] components of the
Class
XC Certificates and one of the [________] components of the Class
XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LC Interest.
"Component X-D-1" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LD-1 Interest.
"Component X-D-2" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LD-2 Interest.
"Component X-D-3" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LD-3 Interest.
"Component X-D-4" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LD-4 Interest.
"Component X-D-5" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LD-5 Interest.
"Component X-E-1" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LE-1 Interest.
"Component X-E-2" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LE-2 Interest.
"Component X-F-1" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LF-1 Interest.
"Component X-F-2" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LF-2 Interest.
"Component X-F-3" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LF-3 Interest.
"Component X-G-1" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LG-1 Interest.
"Component X-G-2" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LG-2 Interest.
"Component X-H-1" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LH-1 Interest.
"Component X-H-2" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LH-2 Interest.
"Component X-J" shall mean one of [________] components of the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LJ Interest.
"Component X-K-1" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LK-1 Interest.
"Component X-K-2" shall mean one of [________] components of
the
Class XC Certificates and one of the [________] components of the
Class XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LK-2 Interest.
"Component X-L" shall mean one of [________] components of the
Class
XC Certificates and one of the [________] components of the Class
XP
Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LL Interest.
"Component X-M" shall mean one of [________] components of the
Class
XC Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LM Interest.
"Component X-N" shall mean one of [________] components of the
Class
XC Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LN Interest.
"Component X-O" shall mean one of [________] components of the
Class
XC Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LO Interest.
"Component X-P" shall mean one of [________] components of the
Class
XC Certificates having a Component Notional Amount which, as of any
date of
determination, is equal to the then current Uncertificated
Principal Balance of
the Class LP Interest.
"Component Notional Amount" shall mean with respect to each
Component and any date of determination, an amount equal to the
then current
Uncertificated Principal Balance of its Corresponding
Uncertificated Lower-Tier
Interest.
"Condemnation Proceeds" shall mean all cash amounts Received in
connection with the taking of all or a part of a Mortgaged Property
or REO
Property by exercise of the power of eminent domain or
condemnation, subject,
however, to the rights of any tenants and ground lessors, as the
case may be,
and the terms of the related Mortgage.
"Controlling Class" shall mean the Class of Certificates (other
than
the Residual Interest Certificates) with the latest alphabetical
Class
designation that has a then-aggregate Class Principal Balance that
is not less
than 25% of the Original Class Principal Balance of such Class;
provided that if
no Class of Principal Balance Certificates has, as of such date
of
determination, a Class Principal Balance that meets the
requirements above, then
the Controlling Class shall be the then outstanding Class of
Principal Balance
Certificates bearing the latest alphabetic Class designation that
has a Class
Principal Balance greater than zero; and provided, further, that,
for purposes
of determining the Controlling Class, the [Class A-1, Class A-2,
Class A-3 and
Class A-4] Certificates shall be deemed a single Class of
Certificates. As of
the Closing Date, the Controlling Class will be the Class [P]
Certificates. If
the Controlling Class consists of Book-Entry Certificates, then the
rights of
the Holders of the Controlling Class set forth in this Agreement
may be
exercised directly by the relevant Certificate Owners, provided
that the
identity of such Certificate Owners has been confirmed to the
Trustee to its
reasonable satisfaction.
"Controlling Class Certificateholder" shall mean any Holder of
a
Certificate of the Controlling Class.
"Controlling Class Representative" shall mean the Holder or
Holders
of greater than 50% of the Voting Rights assigned to the
Controlling Class;
provided that no Holder of Voting Rights allocated to the
Controlling Class may
exercise any rights of such Class with respect to any Mortgage Loan
as to which
such Holder is a Mortgagor Affiliate Holder.
"Corporate Trust Office" shall mean the principal corporate
trust
office of the Trustee at which at any particular time its
asset-backed
securities trust business with respect to this Agreement shall be
administered,
which office at the date of the execution of this Agreement is
located at
[_____________], [_______], [_________], Attention: [___________] -
CWCapital
Commercial Funding Corp., Commercial Mortgage Trust Series
200_-___.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had
been
a Specially Serviced Mortgage Loan but has ceased to be such in
accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by
reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the
related
Mortgaged Property's becoming an REO Property).
"Corresponding Certificate" shall have the meaning assigned
thereto
in the Preliminary Statement with respect to any Corresponding
Component or any
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Component" shall have the meaning assigned thereto
in
the Preliminary Statement with respect to any Corresponding
Certificate or any
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Uncertificated Lower-Tier Interest" shall have
the
meaning assigned thereto in the Preliminary Statement with respect
to any
Corresponding Certificate or any Corresponding Component.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage
Loan
that is cross-defaulted and cross-collateralized with any other
Mortgage Loan.
"Cross-Over Date" shall mean the Distribution Date on which (i)
the
[Class A-1, Class A-2, Class A-3 and Class A-4] Certificates, or
any two or more
of such Classes, remain outstanding and (ii) the aggregate of the
Class
Principal Balances of the [Class B, Class C, Class D, Class E,
Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O and
Class P]
Certificates are reduced to zero as a result of the allocation of
Realized
Losses and Additional Trust Fund Expenses pursuant to Section
4.04(a).
"Custodial Account" shall mean the segregated account or
accounts
created and maintained by the Master Servicer pursuant to Section
3.04(a) on
behalf of the Trustee in trust for the Certificateholders, which
shall be
entitled "[______] as Master Servicer, on behalf of [______], as
Trustee, in
trust for the registered holders of CWCapital Commercial Funding
Corp.,
Commercial Mortgage Trust 200_-___, Commercial Mortgage
Pass-Through
Certificates, Series 200_-___."
"Custodian" shall mean a Person who is at any time appointed by
the
Trustee pursuant to Section 8.11 as a document custodian for the
Mortgage Files,
which Person shall not be the Depositor, the Mortgage Loan Sellers
or an
Affiliate of the Depositor or the Mortgage Loan Sellers. If no such
custodian
has been appointed, or if such custodian has been so appointed but
the Trustee
shall have terminated such appointment, then the Trustee shall be
the Custodian.
"Cut-off Date" shall mean (i) with respect to each Mortgage
Loan
originated before [______], 200_ and with a Due Date on the first
day of each
month, [_____] [_], 200_, (ii) with respect to each Mortgage Loan
originated
before [_______] 1, 200_ and with a Due Date on the sixth day of
each month,
[______], 200_ and (iii) with respect to any Mortgage Loan
originated in
[______], 200_, the date of its origination.
"Cut-off Date Balance" shall mean, with respect to any Mortgage
Loan, the outstanding principal balance of such Mortgage Loan as of
the Cut-off
Date, net of all unpaid payments of principal due in respect
thereof on or
before such date.
"Default Charges" shall mean Default Interest and/or late
payment
charges that are paid or payable, as the context may require, to
the Trust in
respect of any Mortgage Loan or any successor REO Loan with respect
thereto.
"Default Interest" shall mean, with respect to any Mortgage Loan
or
any successor REO Loan with respect thereto, any amounts Received
thereon (other
than late payment charges, Prepayment Premiums or Yield Maintenance
Charges)
that represent penalty interest (arising out of a default) in
excess of interest
accrued on the principal balance of such Mortgage Loan (or
successor REO Loan),
at the related Mortgage Rate.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto
in
Section 3.21(k).
"Defeasance Collateral" shall mean, with respect to any
Defeasance
Loan, the Government Securities required or permitted to be pledged
in lieu of
prepayment pursuant to the terms thereof in order to obtain a
release of the
related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned
thereto
in Section 3.04(a).
"Defeasance Loan" shall mean any Mortgage Loan that permits the
related Mortgagor to pledge Defeasance Collateral to the holder of
such Mortgage
Loan in lieu of prepayment.
"Definitive Certificate" shall have the meaning assigned thereto
in
Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any
Non-Registered Certificate that has been issued as a Definitive
Certificate.
"Depositor" shall mean CWCapital Commercial Funding Corp, and
any
successor in interest.
"Depository" shall mean The Depository Trust Company or any
successor Depository hereafter named as contemplated by Section
5.03(c). The
nominee of the initial Depository for purposes of registering those
Certificates
that are to be Book-Entry Certificates, is Cede & Co. The
Depository shall at
all times be a "clearing corporation" as defined in Section
8-102(3) of the
Uniform Commercial Code of the State of New York and a "clearing
agency"
registered pursuant to the provisions of Section 17A of the
Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or
other
financial institution or other Person for whom from time to time
the Depository
effects book-entry transfers and pledges of securities deposited
with the
Depository.
"Determination Date" shall mean the sixth calendar day of each
month
(or, if such sixth day is not a Business Day, the Business Day
immediately
following such sixth day), commencing in [________] 200_.
"Directly Operate" shall mean, with respect to any REO Property,
the
furnishing or rendering of services to the tenants thereof, the
management or
operation of such REO Property, the holding of such REO Property
primarily for
sale or lease, the performance of any construction work thereon or
any use of
such REO Property in a trade or business conducted by the
Lower-Tier REMIC,
other than through an Independent Contractor; provided, however,
that the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of
the Trustee)
shall not be considered to Directly Operate an REO Property solely
because the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of
the Trustee)
establishes rental terms, chooses tenants, enters into or renews
leases, deals
with taxes and insurance, or makes decisions as to repairs or
capital
expenditures with respect to such REO Property.
"Discount Rate" shall mean, with respect to any prepaid
Mortgage
Loan or REO Mortgage Loan, for purposes of allocating any
Prepayment Premium or
Yield Maintenance Charge Received with respect thereto among the
[Class A-1,
Class A-2, Class A-3, Class A-4, Class B, Class C, Class D, Class
E, Class F,
Class G and Class H] Certificates, a rate equal to the yield (when
compounded
monthly) on the U.S. Treasury issue (primary issue) with a maturity
date closest
to the maturity date, as published in Federal Reserve Statistical
Release H.15
(519) published by the Federal Reserve Board; provided that if
there are two
such U.S. Treasury issues (a) with the same coupon, the issue with
the lower
yield shall apply, and (b) with maturity dates equally close to the
maturity
date for such prepaid Mortgage Loan or REO Mortgage Loan, the issue
with the
earliest maturity date shall apply.
"Disqualified Non-United States Tax Person" shall mean, with
respect
to any Residual Interest Certificate, any Non-United States Tax
Person or agent
thereof other than: (1) a Non-United States Tax Person that (a)
holds such
Residual Interest Certificate and, for purposes of Treasury
Regulations Section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code,
(b) certifies
that it understands that, for purposes of Treasury Regulations
Section
1.860E-1(c)(4)(ii), as a Holder of such Residual Interest
Certificate for United
States federal income tax purposes, it may incur tax liabilities in
excess of
any cash flows generated by such Residual Interest Certificate and
intends to
pay taxes associated with holding such Residual Interest
Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS
Form W-8ECI
or successor form and has agreed to update such form as required
under the
applicable Treasury regulations; or (2) a Non-United States Tax
Person that has
delivered to the Transferor, the Trustee and the Certificate
Registrar an
opinion of nationally recognized tax counsel to the effect that (x)
the Transfer
of such Residual Interest Certificate to it is in accordance with
the
requirements of the Code and the regulations promulgated thereunder
and (y) such
Transfer of such Residual Interest Certificate will not be
disregarded for
United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following: (i)
the
United States, any State or any political subdivision thereof, any
foreign
government, international organization, or any agency or
instrumentality of any
of the foregoing; (ii) any organization (except certain farmers'
cooperatives
described in Section 521 of the Code) that is exempt from the tax
imposed by
Chapter 1 of the Code (unless such organization is subject to the
tax imposed by
Section 511 of the Code on unrelated business income); (iii) rural
electric and
telephone cooperatives described in Section 1381 of the Code; or
(iv) any other
Person so designated by the Trustee or the Tax Administrator based
upon an
Opinion of Counsel that the holding of an Ownership Interest in a
Residual
Interest Certificate by such Person may cause the Trust Fund or any
Person
having an Ownership Interest in any Class of Certificates, other
than such
Person, to incur a liability for any federal tax imposed under the
Code that
would not otherwise be imposed but for the Transfer of an Ownership
Interest in
a Residual Interest Certificate to such Person. The terms "United
States,"
"State" and "international organization" shall have the meanings
set forth in
Section 7701 of the Code or successor provisions.
"Disqualified Partnership" shall mean any domestic entity
classified
as a partnership under the Code if any of its beneficial owners are
Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest" shall mean, with respect to
any
Class of Regular Interest Certificates for any Distribution Date,
subject to
Section 4.05(b), an amount of interest equal to the amount of
Accrued
Certificate Interest in respect of such Class of Certificates for
the related
Interest Accrual Period, reduced (to not less than zero) by that
portion, if
any, of the Net Aggregate Prepayment Interest Shortfall for such
Distribution
Date allocated to such Class of Certificates as provided below. The
Net
Aggregate Prepayment Interest Shortfall, if any, for each
Distribution Date
shall be allocated among the respective Classes of Regular Interest
Certificates
on a pro rata basis in accordance with, the respective amounts of
Accrued
Certificate Interest for each such Class of Certificates for the
related
Interest Accrual Period.
"Distribution Account" shall mean the segregated account or
accounts
created and maintained by the Trustee pursuant to Section 3.04(b),
which shall
be entitled "[______], as Trustee, in trust for the registered
holders of
CWCapital Commercial Funding Corp., Commercial Mortgage Trust
200_-___,
Commercial Mortgage Pass-Through Certificates, Series 200_-___"
which account
shall be deemed to consist of, collectively, the Lower-Tier
Distribution
Account, the Upper-Tier Distribution Account and the Interest
Reserve Account.
"Distribution Date" shall mean the date each month, commencing
in
[_______] 200_, on which, among other things, the Trustee is to
make
distributions on the Certificates, which date shall be the tenth
day of the
month, or if such tenth day is not a Business Day, then the
Business Day
immediately following such tenth day, provided that the
Distribution Date will
be at least four Business Days following the related Determination
Date.
"Distribution Date Statement" shall have the meaning assigned
thereto in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in
Section
2.03(a).
"Due Date" shall mean: (i) with respect to any Mortgage Loan on
or
prior to its Stated Maturity Date, the day of the month set forth
in the related
Mortgage Note on which each Mortgage Monthly Payment on such
Mortgage Loan is
scheduled to be first due; (ii) with respect to any Mortgage Loan
after its
Stated Maturity Date, the day of the month set forth in the related
Mortgage
Note on which each Monthly Payment on such Mortgage Loan had been
scheduled to
be first due; and (iii) with respect to any REO Loan, the day of
the month set
forth in the related Mortgage Note on which each Monthly Payment on
the related
Mortgage Loan had been scheduled to be first due.
"EDGAR" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained
with
a federal or state chartered depository institution or trust
company, the
long-term deposit or unsecured debt obligations of which are rated
at least
"[__]" by [____] and at least "[__]" (or, if such depository
institution or
trust company has short-term unsecured debt obligations rated at
least "[__]" by
[____], at least "A+") by [____] (or, in the case of any Rating
Agency, such
lower rating as will not result in an Adverse Rating Event with
respect to any
Class of Certificates, as evidenced in writing by such Rating
Agency) at any
time such funds are on deposit therein (if such funds are to be
held for more
than 30 days), or the short-term deposits of which are rated at
least "[__]" by
[____] and at least "[__]" by [____] (or, in the case of any Rating
Agency, such
lower rating as will not result in an Adverse Rating Event with
respect to any
Class of Certificates, as evidenced in writing by such Rating
Agency) at any
time such funds are on deposit therein (if such funds are to be
held for 30 days
or less); or (ii) a segregated trust account maintained with the
trust
department of a federal or state chartered depository institution
or trust
company acting in its fiduciary capacity (which may be the
Trustee), is subject
to supervision or examination by federal or state authority and, in
the case of
a state chartered depository institution or trust company, is
subject to
regulations regarding fiduciary funds on deposit therein
substantially similar
to 12 CFR ss. 9.10(b); or (iii) any other account, the use of which
would not,
in and of itself, cause an Adverse Rating Event with respect to any
Class of
Certificates, as evidenced in writing by each Rating Agency.
"Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the Fannie
Mae Multifamily
Guide and the ASTM Standard for Environmental Site Assessments,
each as amended
from time to time.
"Environmental Insurance Policy" shall mean, with respect to
any
Mortgaged Property or REO Property, any insurance policy covering
pollution
conditions and/or other environmental conditions that is maintained
from time to
time in respect of such Mortgaged Property or REO Property, as the
case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the
Mortgage
Loans identified on Schedule III hereto.
"ERISA" shall mean the Employee Retirement Income Security Act
of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor
for
application toward the payment of real estate taxes, assessments,
insurance
premiums, ground rents (if applicable) and other items for which an
escrow has
been created in respect of the related Mortgaged Property.
"Euroclear" shall mean Euroclear Bank as operator of the
Euroclear
System or any successor.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean the excess, if any, of
(a)
the Net Liquidation Proceeds from the sale or liquidation of a
Specially
Serviced Mortgage Loan or REO Property, net of (i) interest on any
related
Advances, (ii) any related Servicing Advances and (iii) any
Liquidation Fee
payable from such Net Liquidation Proceeds, over (b) the amount
needed to pay
off the Mortgage Loan or related REO Loan in full and reimburse the
Trust for
any prior Additional Trust Fund Expenses related to such Mortgage
Loan.
"Excess Liquidation Proceeds Account" shall mean the segregated
account created and maintained by the Trustee pursuant to Section
3.04(d) in
trust for the Certificateholders, which shall be entitled
"[______], as Trustee,
in trust for the registered Holders of CWCapital Commercial Funding
Corp.,
Commercial Mortgage Trust 200_-___, Commercial Mortgage
Pass-Through
Certificates, Series 200_-___."
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as
amended.
"Exemption-Favored Party" shall mean any of (i) [________], (ii)
any
Person directly or indirectly, through one or more intermediaries,
controlling,
controlled by or under common control with [________] and (iii) any
member of
any underwriting syndicate or selling group of which any Person
described in
clauses (i), (ii) or (iii) is a manager or co-manager with respect
to a Class of
Investment Grade Certificates.
"Fannie Mae" shall mean the Federal National Mortgage Association
or
any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or
any
successor.
"Final Distribution Date" shall mean the Distribution Date on
which
the final distribution is to be made with respect to the
Certificates in
connection with a termination of the Trust Fund pursuant to Article
IX.
"Final Recovery Determination" shall mean a determination by
the
Special Servicer with respect to any Specially Serviced Mortgage
Loan or REO
Property that there has been a recovery of all Insurance Proceeds,
Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries
that the Special
Servicer has determined, in accordance with the Servicing Standard,
will be
ultimately recoverable; provided that the term Final Recovery
Determination
shall not apply to: (i) a Mortgage Loan that was paid in full; or
(ii) a
Mortgage Loan or REO Property, as the case may be, that was
purchased by (A) the
applicable Mortgage Loan Seller pursuant to Section 2.03(a) and the
applicable
Mortgage Loan Purchase Agreement, (B) a Purchase Option Holder or
its assignee
pursuant to Section 3.19, (C) the Depositor, the Mortgage Loan
Sellers, the
Special Servicer, a Controlling Class Certificateholder or the
Master Servicer
pursuant to Section 9.01, or the holder of a related mezzanine loan
in
connection with a Mortgage Loan default, as set forth in the
related
intercreditor agreement.
"Form 8-K Disclosure Information" shall have the meaning
assigned
thereto in Section 11.07.
"FV Bid" shall have the meaning assigned thereto in Section
3.19(c).
"FV Price" shall have the meaning assigned thereto in Section
3.19(c).
"GAAP" shall mean generally accepted accounting principles in
the
United States of America.
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule
144A Global
Certificate or the Regulation S Global Certificate.
"Global Opinion" shall have the meaning assigned thereto in
Section
12.12.
"Government Securities" shall mean "Government Securities" as
defined in Section 2(a)(16) of the Investment Company Act of 1940,
excluding any
such securities that are not acceptable to any Rating Agency as
Defeasance
Collateral.
"Ground Lease" shall mean, with respect to any Mortgage Loan
for
which the related Mortgagor has a leasehold interest in the related
Mortgaged
Property, the lease agreement(s) (including any lease agreement
with respect to
a master space lease) creating such leasehold interest.
"Hazardous Materials" shall mean any dangerous, toxic or
hazardous
pollutants, chemicals, wastes, or substances, including, without
limitation,
those so identified pursuant to CERCLA or any other federal, state
or local
environmental related laws and regulations now existing or
hereafter enacted,
and specifically including asbestos and asbestos-containing
materials,
polychlorinated biphenyls, radon gas, petroleum and petroleum
products, urea
formaldehyde and any substance classified as being "in inventory,"
"usable work
in process" or similar classification which would, if classified as
unusable, be
included in the foregoing definition.
"Holder" shall mean, with respect to a Certificate, a
Certificateholder and, with respect to any Uncertificated
Lower-Tier Interest,
the Trust.
"HUD-Approved Servicer" shall mean a servicer that is a
mortgagee
approved by the Secretary of Housing and Urban Development pursuant
to Sections
203 and 211 of the National Housing Act.
"Independent" shall mean, when used with respect to any
specified
Person, any such Person who (i) is in fact independent of the
Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer,
any
Controlling Class Certificateholder, and any and all Affiliates
thereof, (ii)
does not have any direct financial interest in or any material
indirect
financial interest in any of the Depositor, the Mortgage Loan
Sellers, the
Master Servicer, the Special Servicer, any Controlling Class
Certificateholder,
or any Affiliate thereof, and (iii) is not connected with the
Depositor, the
Mortgage Loan Sellers, the Master Servicer, the Special Servicer,
any
Controlling Class Certificateholder, or any Affiliate thereof as an
officer,
employee, promoter, underwriter, trustee, partner, director or
Person performing
similar functions; provided, however, that a Person shall not fail
to be
Independent of the Depositor, the Mortgage Loan Sellers, the Master
Servicer,
the Special Servicer, any Controlling Class Certificateholder, or
any Affiliate
thereof merely because such Person is the beneficial owner of 1% or
less of any
class of securities issued by the Depositor, the Mortgage Loan
Sellers, the
Master Servicer, the Special Servicer, such Controlling Class
Certificateholder
or any Affiliate thereof, as the case may be, provided that such
ownership
constitutes less than 1% of the total assets owned by such
Person.
"Independent Appraiser" shall mean an Independent professional
real
estate appraiser who (i) is a member in good standing of the
Appraisal
Institute, (ii) if the state in which the subject Mortgaged
Property is located
certifies or licenses appraisers, is certified or licensed in such
state, and
(iii) has a minimum of five years experience in the subject
property type and
market.
"Independent Contractor" shall mean: (a) any Person that would be
an
"independent contractor" with respect to the Lower-Tier REMIC
within the meaning
of Section 856(d)(3) of the Code if the Lower-Tier REMIC was a real
estate
investment trust (except that the ownership test set forth in that
Section shall
be considered to be met by any Person that owns, directly or
indirectly, 35
percent or more of any Class of Certificates, or such other
interest in any
Class of Certificates as is set forth in an Opinion of Counsel,
which shall be
at no expense to the Master Servicer, the Special Servicer, the
Trustee or the
Trust Fund, delivered to the Trustee, provided that (i) such REMIC
Pool does not
receive or derive any income from such Person and (ii) the
relationship between
such Person and such REMIC Pool is at arm's length, all within the
meaning of
Treasury Regulations Section 1.856-4(b)(5); or (b) any other Person
upon receipt
by the Trustee of an Opinion of Counsel, which shall be at no
expense to the
Master Servicer, the Special Servicer, the Trustee or the Trust
Fund, to the
effect that the taking of any action in respect of any REO Property
by such
Person, subject to any conditions therein specified, that is
otherwise herein
contemplated to be taken by an Independent Contractor, will not
cause such REO
Property to cease to qualify as "foreclosure property" within the
meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of
the Code, or
cause any income realized in respect of such REO Property to fail
to qualify as
Rents from Real Property, due to such Person's failure to be
treated as an
Independent Contractor.
"Initial Bidder" shall have the meaning assigned thereto in
Section
3.19(c).
"Initial Trust Balance" shall be as set forth in the
Preliminary
Statement hereto and shall equal the aggregate Cut-off Date
Balances of the
Mortgage Loans.
"Institutional Accredited Investor" or "IAI" shall mean an
"accredited investor" as defined in any of paragraphs (1), (2), (3)
and (7) of
Rule 501(a) under the Securities Act or any entity in which all of
the equity
owners come within such paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage
Loan,
any hazard insurance policy, flood insurance policy, title policy,
Environmental
Insurance Policy or other insurance policy that is maintained from
time to time
in respect of such Mortgage Loan or the related Mortgaged
Property.
"Insurance Proceeds" shall mean the proceeds paid under any
Insurance Policy, to the extent such proceeds are not applied to
the restoration
of the related Mortgaged Property, released to the Mortgagor, or
any tenants or
ground lessors, as the case may be, pursuant to the terms of the
related
Mortgage or lease, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage Loan, any Uncertificated
Lower-Tier Interests
or any Class of Regular Interest Certificates, in each case
consisting of one of
the following: (i) a 360-day year consisting of twelve 30-day
months; (ii)
actual number of days elapsed in a 360-day year; (iii) actual
number of days
elapsed in a 365-day year; or (iv) actual number of days elapsed in
an actual
calendar year (taking account of leap year).
"Interest Accrual Period" shall mean with respect to any Class
of
Regular Interest Certificates or Uncertificated Lower-Tier
Interests and any
Distribution Date, the period beginning on the first day of the
calendar month
preceding the calendar month in which the related Distribution Date
occurs and
ending on the last day of the calendar month preceding the calendar
month in
which such Distribution Date occurs, calculated assuming that each
month has 30
days and each year has 360 days.
"Interest Reserve Account" shall mean the sub-account of the
Distribution Account, which is created and maintained by the
Trustee pursuant to
Section 3.04(c) in trust for Certificateholders, which shall be
entitled
"[______], as Trustee, in trust for the registered holders of
CWCapital
Commercial Funding Corp., Commercial Mortgage Trust 200_-___,
Commercial
Mortgage Pass-Through
Certificates, Series 200_-___."
"Interest Reserve Amount" shall mean, with respect to each
Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for
any
Distribution Date that occurs in February of any year and for any
Distribution
Date that occurs in January of any year that is not a leap year, an
amount equal
to one day's interest accrued at the related Mortgage Rate on the
related Stated
Principal Balance as of the Due Date in the month in which such
Distribution
Date occurs (but prior to the application of any amounts due on
such Due Date),
to the extent that a Monthly Payment is Received in respect thereof
for such Due
Date as of the related Determination Date or a P&I Advance is
made under this
Agreement in respect thereof for such Due Date by such Distribution
Date.
"Interest Reserve Mortgage Loan" shall mean any Mortgage Loan
that
accrues interest on an Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO
Mortgage
Loan that relates to a predecessor Interest Reserve Mortgage
Loan.
"Interested Person" shall mean the Depositor, the Master
Servicer,
the Special Servicer, the Trustee, any Certificateholder, or any
Affiliate of
any such Person.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate, other than a Residual Interest
Certificate, that
is rated in one of the four highest generic rating categories by at
least one
Rating Agency.
"IRS" shall mean the Internal Revenue Service or any successor
agency.
"Late Collections" shall mean: (a) with respect to any Mortgage
Loan, all amounts Received in connection therewith during any
Collection Period,
whether as payments, Insurance Proceeds, Condemnation Proceeds,
Liquidation
Proceeds or otherwise, which represent late collections of the
principal and/or
interest portions of a Monthly Payment (other than a Balloon
Payment) or an
Assumed Monthly Payment in respect of such Mortgage Loan due or
deemed due on a
Due Date in a previous Collection Period, or on a Due Date
coinciding with or
preceding the Cut-off Date, and not previously recovered; and (b)
with respect
to any REO Loan, all amounts Received in connection with the
related REO
Property during any Collection Period, whether as Insurance
Proceeds,
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which
represent late collections of the principal and/or interest
portions of a
Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in
respect of the predecessor Mortgage Loan, or the principal and/or
interest
portions of an Assumed Monthly Payment in respect of such REO Loan,
due or
deemed due on a Due Date in a previous Collection Period and not
previously
recovered.
"Liquidation Event" shall mean: (a) with respect to any
Mortgage
Loan, any of the following events--(i) such Mortgage Loan is paid
in full, (ii)
a Final Recovery Determination is made with respect to such
Mortgage Loan, (iii)
such Mortgage Loan is repurchased by the applicable Mortgage Loan
Seller
pursuant to Section 2.03(a) and the applicable Mortgage Loan
Purchase Agreement,
(iv) such Mortgage Loan is purchased by a Purchase Option Holder or
its assignee
pursuant to Section 3.19, (v) such Mortgage Loan is purchased by
the Depositor,
the Special Servicer, a Mortgage Loan Seller, a Controlling
Class
Certificateholder or the Master Servicer pursuant to Section 9.01,
or (vi) such
Mortgage Loan is purchased by the holder of a related mezzanine
loan on behalf
of the related Mortgagor in connection with a Mortgage Loan
default, as set
forth in the related intercreditor agreement; and (b) with respect
to any REO
Property (and the related REO Loan), any of the following
events--(i) a Final
Recovery Determination is made with respect to such REO Property,
or (ii) such
REO Property is purchased by the Depositor, the Special Servicer, a
Mortgage
Loan Seller, a Controlling Class Certificateholder or the Master
Servicer
pursuant to Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not
otherwise
covered by Servicing Advances) in connection with the liquidation
of any
Specially Serviced Mortgage Loan or REO Property pursuant to
Sections 3.09 or
3.19 (including legal fees and expenses, committee or referee fees
and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain
specified events
pursuant to Section 3.11(b).
"Liquidation Fee Rate" shall mean, with respect to each
Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation
Fee is payable,
[___]%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds and REO Revenues) Received in connection with:
(i) the full
or partial liquidation of a Mortgaged Property or other collateral
constituting
security for a defaulted Mortgage Loan, through trustee's sale,
foreclosure
sale, REO Disposition or otherwise, exclusive of any portion
thereof required to
be released to the related Mortgagor in accordance with applicable
law and the
terms and conditions of the related Mortgage Note and Mortgage;
(ii) the
realization upon any deficiency judgment obtained against a
Mortgagor; (iii) the
purchase of a Specially Serviced Mortgage Loan by a Purchase Option
Holder or
its assignee pursuant to Section 3.19; (iv) the repurchase of a
Mortgage Loan by
the applicable Mortgage Loan Seller(s) pursuant to Section 2.03(a)
and the
applicable Mortgage Loan Purchase Agreement(s); (v) the purchase of
a Mortgage
Loan or REO Property by the Depositor, a Mortgage Loan Seller, the
Special
Servicer, a Controlling Class Certificateholder or the Master
Servicer pursuant
to Section 9.01; or (vi) the purchase of a Mortgage Loan by the
holder of a
related mezzanine loan on behalf of the related Mortgagor in
connection with a
Mortgage Loan default, as set forth in the related intercreditor
agreement.
"Lockout Period" shall mean, with respect to any Mortgage Loan
that
prohibits the Mortgagor from prepaying such Mortgage Loan until a
date specified
in the related Mortgage Note or other Mortgage Loan document, the
period from
the Closing Date until such specified date.
"Loss Reimbursement Amount" shall mean:
(a) with respect to any Class of Principal Balance Certificates,
for
any
Distribution Date, the total amount of all Unfunded Principal
Balance
Reductions, if any, incurred by (but not reimbursed to) the Holders
of
such Class
of Certificates on all prior Distribution Dates, if any; and
(b) with respect to any Lower-Tier Regular Interest, for any
Distribution Date, the total amount of all Unfunded Principal
Balance
Reductions, if any, incurred by (but not reimbursed to) the
Lower-Tier
REMIC with
respect to such Lower-Tier Regular Interest on all prior
Distribution Dates, if any.
For purposes of this definition: (x) any increase in the Class
Principal Balance of any Class of Principal Balance Certificates
pursuant to
Section 4.05(a) shall constitute a reimbursement to the Holders of
such Class of
Principal Balance Certificates of any related Unfunded Principal
Balance
Reductions; and (y) any increase in the Lower-Tier Interest
Principal Balance of
any Lower-Tier Regular Interest pursuant to Section 4.05(c) shall
constitute a
reimbursement to the Lower-Tier REMIC with respect to any related
Unfunded
Principal Balance Reductions relating to such Lower-Tier Regular
Interest.
"Lower-Tier Distribution Account" shall mean the sub-account
deemed
to be a part of the Distribution Account and maintained by the
Trustee pursuant
to Section 3.04(b).
"Lower-Tier Distribution Amount" shall mean the aggregate of
amounts
distributable to the Uncertificated Lower-Tier Interests pursuant
to Section
4.01(i).
"Lower-Tier Interest Principal Reinstatement Amount" shall have
the
meaning assigned thereto pursuant to Section 4.05(c).
"Lower-Tier REMIC" shall mean the segregated pool of assets
constituting the primary trust created hereby and to be
administered hereunder
with respect to which a separate REMIC election is to be made, and
consisting
of: (i) the Mortgage Loans as from time to time are subject to this
Agreement
and all payments under and proceeds of such Mortgage Loans received
by the Trust
after the Closing Date, together with all documents included in the
related
Mortgage Files; (ii) any REO Properties as from time to time are
subject to this
Agreement and all income and proceeds therefrom; and (iii) such
funds or assets
as from time to time are deposited in the Custodial Account, the
Lower-Tier
Distribution Account and, if established, the REO Account.
"Master Servicer" shall mean [______] in its capacity as master
servicer hereunder, or any successor master servicer appointed as
herein
provided.
"Master Servicer Remittance Amount" shall mean, with respect to
any
Master Servicer Remittance Date, an amount equal to: (a) the
aggregate amount of
all payments and other collections on or with respect to the
Mortgage Loans and
any related REO Properties that (A) were Received as of the close
of business on
the immediately preceding Determination Date on the Master Servicer
Remittance
Date and (B) are on deposit or are required to be on deposit in the
Custodial
Account as of 12:00 noon (New York City time) on such Master
Servicer Remittance
Date, including any such payments and other collections transferred
to the
Custodial Account from the REO Account (if established); net of (b)
the portion
of the aggregate amount described in clause (a) of this definition
that
represents one or more of the following--(i) Monthly Payments that
are due on a
Due Date following the end of the related Collection Period, (ii)
any amount
payable or reimbursable to any Person from the Custodial Account
pursuant to
clauses (ii) through (xviii) of Section 3.05(a), (iii) any Excess
Liquidation
Proceeds and (iv) any amounts deposited in the Custodial Account in
error.
"Master Servicer Remittance Date" shall mean the date each
month,
commencing in [_________] 200_, on which, among other things, the
Master
Servicer is required to (i) make P&I Advances and (ii) transfer
the Master
Servicer Remittance Amount and any Excess Liquidation Proceeds to
the Trustee,
which date shall be the Business Day immediately preceding each
Distribution
Date.
"Master Servicing Fee" shall mean, with respect to each
Mortgage
Loan (and, in each case, any successor REO Loan with respect
thereto), the fee
designated as such and payable to the Master Servicer pursuant to
Section
3.11(a). The Master Servicing Fee includes any servicing fee rate
payable to any
third-party servicers that sub-service or primary service the
Mortgage Loans on
behalf of the Master Servicer.
"Master Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan and any successor REO Loan, the rate per annum
specified as such
on the Mortgage Loan Schedule.
"Material Breach" shall have the meaning assigned thereto in
Section
2.03(a).
"Material Document Defect" shall have the meaning assigned
thereto
in Section 2.03(a).
"Modified Loan" shall mean any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified
by the Special
Servicer pursuant to Section 3.21 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest
due thereon (other than, or in addition to, bringing Monthly
Payments
current with respect to such Mortgage Loan);
(b) except as expressly contemplated by the related Mortgage
Loan
documents,
results in a release of the lien of the related Mortgage on any
material
portion of the related Mortgaged Property without a
corresponding
Principal
Prepayment in an amount, or the delivery of substitute real
property
collateral with a fair market value (as is), that is not less
than the
fair market value (as is) of the property to be released, as
determined
by an appraisal delivered to the Special Servicer (at the
expense of
the related Mortgagor and upon which the Special Servicer may
conclusively rely); or
(c) in the reasonable, good faith judgment of the Special
Servicer,
otherwise
materially impairs the security for such Mortgage Loan or
materially
reduces the likelihood of timely payment of amounts due
thereon.
"Monthly Payment" shall mean, with respect to any Mortgage Loan,
as
of any Due Date, the scheduled monthly debt service payment on such
Mortgage
Loan that is actually payable by the related Mortgagor from time to
time under
the terms of the related Mortgage Note (as such terms may be
changed or modified
in connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or by reason of a modification, extension, waiver or
amendment granted
or agreed to by the Special Servicer pursuant to Section 3.21),
including any
Balloon Payment payable in respect of such Mortgage Loan on such
Due Date;
provided that the Monthly Payment due in respect of any Mortgage
Loan shall not
include Default Interest.
"Mortgage" shall mean, with respect to any Mortgage Loan, the
mortgage, deed of trust, deed to secure debt or similar instrument
that secures
the related Mortgage Note and creates a lien on the related
Mortgaged Property.
"Mortgage File" shall mean:
(a) with respect to any Mortgage Loan, 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 "[______], as trustee for
the
registered holders of CWCapital Commercial Funding Corp.,
Commercial
Mortgage Trust 200_-___, 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 not the Mortgage Loan Seller) (or, alternatively,
if
the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note);
(ii) an original or copy of the Mortgage, together with
originals or copies of any and all intervening assignments
thereof,
in each case (unless the particular item has not been returned
from
the applicable recording office) with evidence of recording
indicated thereon;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage),
together
with originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of
recording indicated thereon;
(iv) an original executed assignment, in recordable form
(except for recording information not yet available if the
instrument being assigned has not been returned from the
applicable
recording office), of (A) the Mortgage and (B) any related
Assignment of Leases
(if such item is a document separate from the
Mortgage), in favor of "[______], in its capacity as trustee for
the
registered holders of CWCapital Commercial Funding Corp.,
Commercial
Mortgage Trust 200_-___, Commercial Mortgage Pass-Through
Certificates, Series 200_-___" (or, in each case, a copy
thereof,
certified to be the copy of such assignment submitted for
recording);
(v) an original or copy of the assignment of all unrecorded
documents relating to the Mortgage Loan, in favor of "[______],
as
trustee for the registered holders of CWCapital Commercial
Funding
Corp., Commercial Mortgage Trust 200_-___, Commercial Mortgage
Pass-Through Certificates, Series 200_-___";
(vi) originals or copies of final written modification
agreements in those instances where the terms or provisions of
the
Mortgage Note for such Mortgage Loan or the related Mortgage
have
been modified as to a monetary term or other material term
thereof,
in each case (unless the particular item has not been returned
from
the applicable recording office) with evidence of recording
indicated thereon if the instrument being modified is a
recordable
document;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such
Mortgage
Loan (or, if such policy has not been issued, a "marked-up" pro
forma title policy marked as binding and countersigned by the
title
insurer or its authorized agent, or an irrevocable, binding
commitment to issue such title insurance policy);
(viii) filed copies (with evidence of filing) of any prior
effective UCC Financing Statements in favor of the originator
of
such Mortgage Loan or in favor of any assignee prior to the
Trustee
(but only to the extent the applicable Mortgage Loan Seller had
possession of such UCC Financing Statements prior to the
Closing
Date) and an original UCC-2 or UCC-3 assignment thereof, as
appropriate, in form suitable for filing, in favor of "[______],
in
its capacity as trustee for the registered holders of CWCapital
Commercial Funding Corp., Commercial Mortgage Trust 200_-___,
Commercial Mortgage Pass-Through Certificates, Series
200_-___";
(ix) an original or copy of the related Ground Lease relating
to such Mortgage Loan, if any;
(x) an original or copy of the related loan agreement, if any;
(xi) an original of the related guaranty of payment under, or
an original of the letter of credit (which original shall be
delivered by the Trustee to the Master Servicer with a copy
retained) in connection with, such Mortgage Loan, if any;
(xii) an original or copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xiii) an original or copy of the environmental indemnity from
the related Mortgagor, if any;
(xiv) an original or copy of the related security agreement
(if such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments
thereof;
(xv) an original assignment of the related security agreement
(if such item is a document separate from the Mortgage and if
such
item is not included in the assignment described in clause (v)),
in
favor of "[______], in its capacity as trustee for the
registered
holders of CWCapital Commercial Funding Corp., Commercial
Mortgage
Trust 200_-___, Commercial Mortgage Pass-Through Certificates,
Series 200_-___";
(xvi) in the case of any Mortgage Loan as to which there
exists a related mezzanine loan, the original or a copy of the
related intercreditor agreement;
(xvii) an original or copy of any related Environmental
Insurance Policy; and
(xviii) with respect to hospitality properties, a signed copy
of the franchise agreement (if any), franchisor comfort letter
(if
any) and transfer documents for such comfort letter;
provided that whenever the term "Mortgage File" is used to refer to
documents
actually received by the Trustee or by a Custodian on its behalf,
such term
shall not be deemed to include such documents required to be
included therein
unless they are actually so received, and with respect to any
receipt or
certification by the Trustee or a Custodian on its behalf for
documents
described in clauses (a)(vi) and (a)(ix) through (a)(xviii) of this
definition,
shall be deemed to include such documents only to the extent the
Trustee or a
Custodian on its behalf has actual knowledge of their
existence.
"Mortgage Loan" shall mean any Mortgage Loan (including a
Specially
Serviced Mortgage Loan, but excluding an REO Loan) that is, as
contemplated by
Section 3.01, to be serviced and administered by the Master
Servicer and/or the
Special Servicer hereunder, which includes the Mortgage Loans.
"Mortgage Loan" shall mean each of the mortgage loans listed on
the
Mortgage Loan Schedule and from time to time held in the Trust
Fund. As used
herein, the term "Mortgage Loan" includes the related Mortgage
Note(s), Mortgage
and other security documents contained in the related Mortgage File
or otherwise
held on behalf of the Trust.
"Mortgage Loan Payoff Notification Report" shall mean a report
containing substantially the information described in Exhibit E
attached hereto,
and setting forth for each Mortgage Loan as to which written notice
of
anticipated payoff has been received by the Master Servicer as of
the
Determination Date preceding the delivery of such report, among
other things,
the mortgage loan number, the property name, the ending scheduled
loan balance
for the Collection Period ending on such Determination Date, the
expected date
of payment, the expected related Distribution Date and the
estimated amount of
the Yield Maintenance Charge or Prepayment Premium due (if
any).
"Mortgage Loan Purchase Agreement" shall mean the Mortgage Loan
Purchase Agreement dated as of [________], 200_ and entered into by
and between
the Depositor and the applicable Mortgage Loan Seller.
"Mortgage Loan Schedule" shall mean the list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of the Trust
Fund,
attached hereto as Schedule I (and also delivered to the Trustee
and the Master
Servicer in a computer readable format). Such list shall set forth
the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due
Date following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate, and (B) Master
Servicing Fee Rate (separately identifying any primary servicing
fee
rate or subservicing fee rate included in the Master Servicing
Fee
Rate);
(x) whether the Mortgage Loan is secured by a Ground Lease;
(xi) the Mortgage Loan Seller(s);
(xii) the originator;
(xiii) whether the related Mortgage Loan is a Defeasance Loan;
(xiv) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it
belongs; and
(xv) whether there is a letter of credit in place for the
related Mortgage Loan.
"Mortgage Loan Sellers" shall mean each of CWCapital LLC and
[________].
"Mortgage Note" shall mean the original executed note or notes
evidencing the indebtedness of a Mortgagor under a Mortgage Loan,
together with
any rider, addendum or amendment thereto, or any renewal,
substitution or
replacement of such note or notes.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loan.
"Mortgage Pool Data Update Report" shall mean, with respect to
any
Distribution Date, a report (which may be included as part of the
Distribution
Date Statement), prepared by the Trustee, containing information
regarding the
Mortgage Loans as of the end of the related Collection Period,
which report
shall contain substantially the categories of information regarding
the Mortgage
Loans set forth on Annex A to the Prospectus Supplement
(calculated, where
applicable, on the basis of the most recent relevant information
provided by the
Mortgagors to the Master Servicer or the Special Servicer, as the
case may be,
and by the Master Servicer or the Special Servicer, as the case may
be, to the
Trustee), and which information shall be presented in tabular
format
substantially similar to the format utilized on such annex and
shall also
include a loan-by-loan listing (in descending balance order)
showing loan
number, property type, location, unpaid principal balance, Mortgage
Rate,
paid-through date, maturity date, gross interest portion of the
Monthly Payment,
principal portion of the Monthly Payment, and any Prepayment
Premium or Yield
Maintenance Charge received.
"Mortgage Rate" shall mean, with respect to each Mortgage Loan
(and
any successor REO Loan with respect thereto), the related
annualized rate at
which interest is scheduled (in the absence of a default) to accrue
on such
Mortgage Loan from time to time in accordance with the related
Mortgage Note and
applicable law, as such rate may be modified in accordance with
Section 3.21 or
in connection with a bankruptcy, insolvency or similar proceeding
involving the
related Mortgagor. Notwithstanding the foregoing, if any Mortgage
Loan does not
accrue interest on the basis of a 360-day year consisting of twelve
30-day
months, then, solely for purposes of calculating Pass-Through
Rates, the
Mortgage Rate of such Mortgage Loan for any one-month period
preceding a related
Due Date shall be the annualized rate at which interest would have
to accrue in
respect of such Mortgage Loan on the basis of a 360-day year
consisting of
twelve 30-day months in order to produce the aggregate amount of
interest
actually accrued (exclusive of Default Interest) in respect of such
Mortgage
Loan during such one-month period at the related Mortgage Rate;
provided,
however, that with respect to any Interest Reserve Mortgage Loan,
the Mortgage
Rate for (A) the one month period preceding the Due Dates that
occur in January
and February in any year that is not a leap year or the one month
period
preceding the Due Date that occurs in February in any year that is
a leap year
will be determined exclusive of the Interest Reserve Amount
withheld from that
month, and (B) the one month period preceding the Due Date in March
will be
determined inclusive of the amounts withheld from the immediately
preceding
February and, if applicable, January.
"Mortgaged Property" shall mean the real property (together with
all
improvements and fixtures thereon) subject to the lien of a
Mortgage.
"Mortgagor" shall mean, individually and collectively, as the
context may require, the obligor or obligors under a Mortgage Loan,
including
any Person that has not signed the related Mortgage Note but owns
an interest in
the related Mortgaged Property, which interest has been encumbered
to secure
such Mortgage Loan.
"Mortgagor
Affiliate Holder" shall mean any Certificateholder that
is a Mortgagor or an Affiliate of the Mortgagor (including
Certificateholder or
its Affiliate, in each case, that was a lender of the Mortgagor and
has
foreclosed on the equity interests in the Mortgagor or any
Certificateholder
that acquires, directly or through an Affiliate, a direct equity
interest in the
Mortgaged Property).
"Net Aggregate Prepayment Interest Shortfall" shall mean, with
respect to any Distribution Date and any Mortgage Loan, the amount,
if any, by
which (a) the aggregate of all Prepayment Interest Shortfalls
incurred in
connection with the receipt of Principal Prepayments and/or,
insofar as they
result from the application of Insurance Proceeds and/or
Condemnation Proceeds,
other early recoveries of principal Received on such Mortgage Loans
(including
Specially Serviced Mortgage Loans) during the related Collection
Period, exceeds
(b) the aggregate amount deposited by the Master Servicer in the
Distribution
Account for such Distribution Date pursuant to Section 3.20(a) in
connection
with such Prepayment Interest Shortfalls.
"Net Default Charges" shall have the meaning assigned thereto
in
Section 3.27(a).
"Net Investment Earnings" shall mean, with respect to any
Investment
Account for any Collection Period, the amount, if any, by which the
aggregate of
all interest and other income realized during such Collection
Period on funds
held in such Investment Account (exclusive, in the case of a
Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion
of such
interest or other income payable to a Mortgagor in accordance with
the related
Mortgage Loan documents and applicable law), exceeds the aggregate
of all
losses, if any, incurred during such Collection Period in
connection with the
investment of such funds in accordance with Section 3.06
(exclusive, in the case
of a Servicing Account, a Reserve Account or the Defeasance Deposit
Account, of
any portion of such losses that were incurred in connection with
investments
made for the benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any
Investment
Account for any Collection Period, the amount by which the
aggregate of all
losses, if any, incurred during such Collection Period in
connection with the
investment of funds held in such Investment Account in accordance
with Section
3.06 (exclusive, in the case of a Servicing Account, a Reserve
Account or the
Defeasance Deposit Account, of any portion of such losses that were
incurred in
connection with investments made for the benefit of a Mortgagor),
exceeds the
aggregate of all interest and other income realized during such
Collection
Period on such funds (exclusive, in the case of a Servicing
Account, a Reserve
Account or the Defeasance Deposit Account, of any portion of such
interest or
other income payable to a Mortgagor in accordance with the related
Mortgage Loan
documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of
all
Liquidation Proceeds received with respect to any Specially
Serviced Mortgage
Loan or REO Property, over the amount of all Liquidation Expenses
incurred with
respect thereto.
"Net Mortgage Rate" shall mean with respect to any Mortgage Loan
or
REO Loan, as of any date of determination, a rate per annum equal
to the related
Mortgage Rate then in effect, minus the Administrative Cost Rate;
provided,
however, that for purposes of calculating Pass-Through Rates, the
Net Mortgage
Rate for any Mortgage Loan will be determined without regard to
any
modification, waiver or amendment of the terms of such Mortgage
Loan, whether
agreed to by the Master Servicer or Special Servicer or resulting
from a
bankruptcy, insolvency or similar proceeding involving the
Mortgagor.
"Net Prepayment Consideration" shall mean the Prepayment
Consideration Received with respect to any Mortgage Loan or REO
Mortgage Loan,
net of any Workout Fee or Liquidation Fee payable therefrom.
"New Lease" shall mean any lease of REO Property entered into at
the
direction of the Special Servicer, including any lease renewed,
modified or
extended on behalf of the Trustee, if the Trust has the right to
renegotiate the
terms of such lease.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I
Advance
or Nonrecoverable Servicing Advance. Workout-Delayed Reimbursement
Amounts shall
constitute a Nonrecoverable Advance only when the Person making
such
determination in accordance with the procedures specified in the
definition of
Nonrecoverable P&I Advance or Nonrecoverable Servicing Advance,
as applicable,
and taking into account factors such as all other outstanding
Advances, either
(a) has determined that such Workout-Delayed Reimbursement Amounts,
would not
ultimately be recoverable from Late Collections or any other
recovery on or in
respect of the related Mortgage Loan or REO Loans, or (b) has
determined that
such Workout-Delayed Reimbursement Amount, along with any other
Workout-Delayed
Reimbursement Amounts (that have not been reimbursed to the party
that made such
Advance) or unreimbursed Nonrecoverable Advances, would not be
ultimately
recoverable from the principal portion of future general
collections on the
Mortgage Loans and REO Properties. Any determination as to whether
an Advance is
or, if made, would be a Nonrecoverable Advance, if made by the
Master Servicer
or the Special Servicer shall be made in accordance with the
Servicing Standard
and if made by the Trustee shall be made in such party's
reasonable, good faith
judgment.
"Nonrecoverable P&I Advance" shall mean with respect to any
Mortgage
Loan, any P&I Advance previously made or proposed to be made in
respect of such
Mortgage Loan or a related REO Loan by the Master Servicer or the
Trustee, which
P&I Advance such party has determined will not be ultimately
recoverable from
late payments, Insurance Proceeds, Condemnation Proceeds or
Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage
Loan or REO
Loan, as the case may be. Any determination as to whether a P&I
Advance is or,
if made, would be a Nonrecoverable P&I Advance, if made by the
Master Servicer
shall be made in accordance with the Servicing Standard and if made
by the
Trustee shall be made in such party's reasonable, good faith
judgment.
"Nonrecoverable Servicing Advance" shall mean any Servicing
Advance
previously made or proposed to be made in respect of a Mortgage
Loan or REO
Property by the Master Servicer, the Special Servicer or the
Trustee, which
Servicing Advance such party has determined will not be ultimately
recoverable
from late payments, Insurance Proceeds, Condemnation Proceeds,
Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage
Loan or REO
Property, as the case may be. Any Servicing Advance that is (i) not
required to
be repaid by the related Mortgagor under the terms of the related
Mortgage Loan
documents or (ii) cannot be collected from the Mortgagor under
applicable law
shall be deemed to be a Nonrecoverable Advance for purposes of the
Master
Servicer's, the Special Servicer's, the Trustee's entitlement to
reimbursement
for such Advance. Any determination as to whether a Servicing
Advance is or, if
made, would be a Nonrecoverable Servicing Advance, if made by the
Master
Servicer or the Special Servicer shall be made in accordance with
the Servicing
Standard and if made by the Trustee shall be made in such party's
reasonable,
good faith judgment.
"Non-Registered
Certificate" shall mean any Certificate that has not
been the subject of registration under the Securities Act. As of
the Closing
Date, the [Class XP, Class XC, Class F, Class G, Class H, Class J,
Class K,
Class L, Class M, Class N, Class O, Class P,] Class R-I and Class
R-II
Certificates are Non-Registered Certificates.
"Non-United States Tax Person" shall mean any Person other than
a
United States Tax Person.
"Notional Amount" means, as of any date of determination: (i)
with
respect to all of the Class XP or Class XC Certificates as a Class,
Class XP
Notional Amount or Class XC Notional Amount, as applicable, as of
such date of
determination; and (ii) with respect to any Class XP or Class XC
Certificate,
the product of the Percentage Interest evidenced by such
Certificate and the
Class XP Notional Amount or Class XC Notional Amount, as
applicable, as of such
date of determination.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer, the Special Servicer or
Additional
Servicer, as the case may be, or by a Responsible Officer of the
Trustee, and
shall mean with respect to any other Person, a certificate signed
by any of the
Chairman of the Board, the Vice Chairman of the Board, the
President, any Vice
President or Managing Director, an Assistant Vice President or any
other
authorized officer (however denominated) or another officer
customarily
performing functions similar to those performed by any of the above
designated
officers or, with respect to a particular matter, any other officer
to whom such
matter is referred because of such officer's knowledge of and
familiarity with
the particular subject.
"Opinion of Counsel" shall mean a written opinion of counsel,
who
may, without limitation, be salaried counsel for the Depositor, the
Master
Servicer or the Special Servicer, acceptable in form and delivered
to the
Trustee or any other specified Person, as the case may be, except
that any
opinion of counsel relating to (a) the qualification of the
Lower-Tier REMIC or
the Upper-Tier REMIC as a REMIC, (b) compliance with the REMIC
Provisions, (c)
whether any act or event would cause an Adverse REMIC Event, or (e)
the
resignation of the Master Servicer or the Special Servicer pursuant
to this
Agreement, must be a written opinion of Independent counsel
acceptable to and
delivered to the Trustee or any other specified Person, as the case
may be.
"Original Lower-Tier Principal Amount" shall mean the amount
set
forth under the column bearing such title in the table in the
Preliminary
Statement hereto.
"Original Class Principal Balance" shall mean, with respect to
any
Class of Principal Balance Certificates, the initial Class
Principal Balance
thereof as of the Closing Date, in each case as specified in the
Preliminary
Statement.
"OTS" shall mean the Office of Thrift Supervision or any
successor
thereto.
"Ownership Interest" shall mean, as to any Certificate, any
ownership or security interest in such Certificate as the Holder
thereof and any
other interest therein, whether direct or indirect, legal or
beneficial, as
owner or as pledgee.
"P&I Advance" shall mean, as to any Mortgage Loan or a related
REO
Loan, any advance made by the Master Servicer or the Trustee
pursuant to Section
4.03.
"Pass-Through Rate" shall mean:
(b) with respect to the Class A-1 Certificates for any Interest
Accrual
Period, [________]% per annum;
(c) with respect to the Class A-2 Certificates for any Interest
Accrual
Period, [________]% per annum;
(d) with respect to the Class A-3 Certificates for any Interest
Accrual
Period, [________]% per annum;
(e) with
respect to the Class A-4 Certificates for any Interest
Accrual
Period, an annual rate equal to [________]% per annum;
(f) with respect to the Class B Certificates for any Interest
Accrual
Period, an annual rate equal to [________]% per annum;
(g) with respect to the Class C Certificates for any Interest
Accrual
Period, an annual rate equal to [________]% per annum;
(h) with respect to the Class D Certificates for any Interest
Accrual
Period, an annual rate equal to [________]% per annum;
(i) with respect to the Class E Certificates for any Interest
Accrual
Period, an annual rate equal to [________]% per annum;
(j) with respect to the Class F Certificates for any Interest
Accrual
Period, an annual rate equal to [________]% per annum;
(k) with respect to the Class G Certificates for any Interest
Accrual
Period, an annual rate equal to [________]% per annum;
(l) with respect to the Class H Certificates for any Interest
Accrual
Period, an annual rate equal to [__]% per annum;
(m) with respect to each of the [Class J, Class K, Class L, Class
M,
Class N,
Class O and Class P] Certificates for any Interest Accrual
Period, an
annual rate equal to [________]% per annum;
(n) [with respect to the Class XC Certificates for any Interest
Accrual
Period, an annual rate equal to the weighted average of the
Class
XC Strip
Rates for the Components for such Distribution Date (weighted
on
the basis
of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date)]; and
(o) [with respect to the Class XP Certificates for any Interest
Accrual
Period, an annual rate equal to the weighted average of the
Class
XP Strip
Rates for the respective Class XP Components for such
Distribution Date (weighted on the basis of the respective
Component
Notional Amounts
of such Components outstanding immediately prior to such
Distribution Date)].
"PCAOB" means the Public Company Accounting Oversight Board.
"Percentage Interest" shall mean: (a) with respect to any
Regular
Interest Certificate, the portion of the relevant Class evidenced
by such
Certificate, expressed as a percentage, the numerator of which is
the
Certificate Principal Balance or Notional Amount, as the case may
be, of such
Certificate as of the Closing Date, as specified on the face
thereof, and the
denominator of which is the Original Class Principal Balance or
initial Notional
Amount, as the case may be, of the relevant Class; and (b) with
respect to
Residual Interest Certificate, the percentage interest in
distributions to be
made with respect to the relevant Class, as stated on the face of
such
Certificate.
"Performance Certification" shall have the meaning assigned to
such
term in Section 13.4.
"Performing Party" shall have the meaning assigned to such term
in
Section 13.10.
"Performing Mortgage Loan" shall mean any Mortgage Loan as to
which
a Servicing Transfer Event has never occurred and any Corrected
Mortgage Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto
in
Section 2.04(b)(viii).
"Permitted Investments" shall mean any one or more of the
following
obligations or securities (including obligations or securities of
the Trustee if
otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States
or
any agency or instrumentality thereof (having original maturities
of
not more than 365 days), provided that such obligations are
backed
by the full faith and credit of the United States. Such
obligations
must be limited to those instruments that have a predetermined
fixed
dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such
interest
is variable, interest must be tied to a single interest rate
index
plus a single fixed spread (if any), and move proportionately
with
that index;
(ii) repurchase obligations with respect to any security
described in clause (i) of this definition (having original
maturities of not more than 365 days), provided that the
short-term
deposit or debt obligations of the party agreeing to repurchase
such
obligations are rated in the highest rating category of each of
[_____] and [_____] (or, in the case of any Rating Agency, such
lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates, as evidenced in writing
by
such Rating Agency). In addition, any such item by its terms
must
have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. Interest may either be fixed
or
variable. If such interest is variable, interest must be tied to
a
single interest rate index plus a single fixed spread (if any),
and
move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits
and bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof
(having
original maturities of not more than 365 days), the short term
obligations of which are rated in the highest rating category
of
each of [_____] and [_____] (or, in the case of any Rating
Agency,
such lower rating as will not result in an Adverse Rating Event
with
respect to any Class of Certificates, as evidenced in writing
by
such Rating Agency). In addition, any such item by its terms
must
have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. Interest may either be fixed
or
variable. If such interest is variable, interest must be tied to
a
single interest rate index plus a single fixed spread (if any),
and
move proportionately with that index;
(iv) commercial paper (having original maturities of not more
than 90 days) of any corporation incorporated under the laws of
the
United States or any state thereof (or if not so incorporated,
the
commercial paper is United States Dollar denominated and
amounts
payable thereunder are not subject to any withholding imposed by
any
non-United States jurisdiction) which is rated in the highest
rating
category of each of [_____] and [_____] (or, in the case of any
Rating Agency, such lower rating as will not result in an
Adverse
Rating Event with respect to any Class of Certificates, as
evidenced
in writing by such Rating Agency). In addition, such commercial
paper by its terms must have a predetermined fixed dollar amount
of
principal due at maturity that cannot vary or change. Interest
may
either be fixed or variable. If such interest is variable,
interest
must be tied to a single interest rate index plus a single
fixed
spread (if any), and move proportionately with that index;
(v) units of money market funds rated in the highest
applicable rating category of each of [_____] and [_____] (or,
in
the case of any Rating Agency, such lower rating as will not
result
in an Adverse Rating Event with respect to any Class of
Certificates, as evidenced in writing by such Rating Agency)
and
which seeks to maintain a constant net asset value; and
(vi) any other obligation or security that (A) is acceptable
to each Rating Agency, evidence of which acceptability shall be
provided in writing by each Rating Agency to the Master
Servicer,
the Special Servicer and the Trustee, and (B) constitutes a
"cash
flow investment" (within the meaning of the REMIC Provisions),
as
evidenced by an Opinion of Counsel obtained at the expense of
the
Person that wishes to include such obligation or security as a
Permitted Investment;
provided that (1) no investment described hereunder shall evidence
either the
right to receive (x) only interest with respect to such investment
or (y) a
yield to maturity greater than 120% of the yield to maturity at par
of the
underlying obligations; (2) no investment described hereunder may
be purchased
at a price greater than par if such investment may be prepaid or
called at a
price less than its purchase price prior to stated maturity; and
(3) no
investment described hereunder may have a "r" highlighter or other
comparable
qualifier attached to its rating.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization,
(b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of
Counsel,
obtained at the request of the Trustee at the expense of such
Person or the
Person seeking to Transfer a Residual Interest Certificate,
supporting such
determination), the Transfer of a Residual Interest Certificate may
cause either
REMIC Pool to fail to qualify as a REMIC at any time that any
Certificate is
outstanding, (c) a Disqualified Non-United States Tax Person, (d) a
Disqualified
Partnership, or (e) a United States Tax Person with respect to whom
interest is
attributable to a foreign permanent establishment or fixed base
(within the
meaning of any applicable income tax treaty between the United
States and any
foreign jurisdiction) of such Person or any other United States Tax
Person.
"Person" shall mean any individual, corporation, partnership,
joint
venture, association, joint-stock company, limited liability
company, trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
"Plan" shall have the meaning assigned thereto in Section
5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as
to
any taxable year of each REMIC Pool, the Holder of Certificates
entitled to the
largest percentage of the Voting Rights allocated to the related
Class of
Residual Interest Certificates.
"Prepayment Assumption" shall mean, for purposes of determining
the
accrual of original issue discount, market discount and premium, if
any, on the
Certificates for federal income tax purposes, the assumption that
no Mortgage
Loan is prepaid prior to stated maturity.
"Prepayment Consideration" shall mean any Prepayment Premium or
Yield Maintenance Charge.
"Prepayment Consideration Entitlement" shall mean, with respect
to
(i) any Distribution Date on which any Net Prepayment Consideration
Received on
any Mortgage Loan (or any successor REO Mortgage Loan with respect
thereto) is
distributable and (ii) each of the [Class A-1, Class A-2, Class
A-3, Class A-4,
Class B, Class C, Class D, Class E, Class F, Class G and Class H]
Certificates
entitled to distributions of principal on such Distribution Date,
an amount
equal to the product of (a) such Net Prepayment Consideration,
multiplied by (b)
a fraction (not greater than 1.0 or less than 0.0), the numerator
of which is
equal to the excess, if any, of the Pass-Through Rate for such
Class of
Principal Balance Certificates over the relevant Discount Rate, and
the
denominator of which is equal to the excess, if any, of the
Mortgage Rate for
such Mortgage Loan (or REO Mortgage Loan) over the relevant
Discount Rate.
"Prepayment Interest Excess" shall mean with respect to any
Mortgage
Loan that were subject to a Principal Prepayment in full or in part
made (or, if
resulting from the application of Insurance Proceeds or
Condemnation Proceeds,
any other early recovery of principal received) after its Due Date
in any
Collection Period, any payment of interest (net of related Master
Servicing
Fees) actually collected from the related Mortgagor or otherwise
and intended to
cover interest accrued on such Principal Prepayment during the
period from and
after such Due Date (exclusive, however, of any related Prepayment
Premium or
Yield Maintenance Charge that may have been collected).
"Prepayment Interest Shortfall" shall mean with respect to any
Mortgage Loan that were subject to a Principal Prepayment in full
or in part
made (or, if resulting from the application of Insurance Proceeds
or
Condemnation Proceeds, any other early recovery of principal
received) prior to
its Due Date in any Collection Period, the amount of interest, to
the extent not
collected from the related Mortgagor or otherwise (without regard
to any
Prepayment Premium or Yield Maintenance Charge that may have been
collected),
that would have accrued at a rate per annum equal to the related
Mortgage Rate
(net of the rate at which the related Master Servicing Fees that
are payable on
such Mortgage Loan accrue) 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.
"Prepayment Premium" shall mean any premium, penalty or fee
(other
than a Yield Maintenance Charge) paid or payable, as the context
requires, as a
result of a Principal Prepayment on, or other early collection of
principal of,
a Mortgage Loan.
["Primary Servicer" shall mean CWCapital LLC, in its capacity
as
primary servicer with respect to those Mortgage Loans set forth on
Schedule VII
herein.]
["Primary Servicing Agreement" shall mean the written contract
between the Master Servicer and the Primary Servicer relating to
the Mortgage
Loans set forth on Schedule VII herein.]
"Primary Servicing Office" shall mean the offices of the Master
Servicer or the Special Servicer, as the context may require, that
are primarily
responsible for such party's servicing obligations hereunder. As of
the Closing
Date, the Primary Servicing Office of the Master Servicer is
located at
[_________], and the Primary Servicing Office of the Special
Servicer is located
at [_________].
"Prime Rate" shall mean the "prime rate" published in the
"Money
Rates" section of The Wall Street Journal, as such "prime rate" may
change from
time to time. If The Wall Street Journal ceases to publish the
"prime rate,"
then the Trustee shall select an equivalent publication that
publishes such
"prime rate"; and if such "prime rate" is no longer generally
published or is
limited, regulated or administered by a governmental or
quasi-governmental body,
then the Trustee shall select a comparable interest rate index. In
either case,
such selection shall be made by the Trustee in its sole discretion
and the
Trustee shall notify the Master Servicer and the Special Servicer
in writing of
its selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than the Class X Certificates).
"Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without
duplication) of the
following:
(a) the aggregate of all payments of principal (other than
Principal
Prepayments) Received with respect to the Mortgage Loans during
the
related
Collection Period, in each case exclusive of any portion of the
particular
payment that represents a Late Collection of principal for
which a
P&I Advance was previously made under this Agreement for a
prior
Distribution Date or that represents the principal portion of a
Monthly
Payment
due on or before the Cut-off Date or on a Due Date subsequent
to
the
related Collection Period;
(b) the aggregate of the principal portions of all Monthly
Payments
due in
respect of the Mortgage Loans for their respective Due Dates
occurring
during the related Collection Period, that were Received prior
to the
related Collection Period;
(c) the aggregate of all Principal Prepayments Received on the
Mortgage
Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds
and
Insurance Proceeds Received with respect to any Mortgage Loans
during
the related Collection
Period that were identified and applied by the
Master
Servicer as recoveries of principal of such Mortgage Loans, in
each
case
exclusive of any portion of such proceeds that represents a
Late
Collection
of principal due on or before the Cut-off Date or for which a
P&I
Advance was previously made under this Agreement for a prior
Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds,
Insurance Proceeds and REO Revenues Received with respect to
any
REO
Properties during the related Collection Period that were
identified
and
applied by the Master Servicer as recoveries of principal of
the
related
REO Mortgage Loans, in each case exclusive of any portion of
such
proceeds
and/or revenues that represents a Late Collection of principal
due on or
before the Cut-off Date or for which a P&I Advance was
previously
made under this Agreement for a prior Distribution Date; and
(f) the aggregate of the principal portions of all P&I Advances
made
under this
Agreement with respect to the Mortgage Loans and any REO
Mortgage
Loans for such Distribution Date;
provided that the Principal Distribution Amount for any
Distribution Date shall
be reduced by the amount of any reimbursements of (i)
Nonrecoverable Advances
plus interest on such Nonrecoverable Advances that are deemed paid
or reimbursed
from principal collections on the Mortgage Loans in a period during
which such
principal collections would have otherwise been included in the
Principal
Distribution Amount for such Distribution Date and (ii)
Workout-Delayed
Reimbursement Amounts that were paid or reimbursed from principal
collections on
the Mortgage Loans in a period during which such principal
collections would
have otherwise been included in the Principal Distribution Amount
for such
Distribution Date.
"Principal Prepayment" shall mean any voluntary payment of
principal
made by the Mortgagor on a Mortgage Loan that is Received in
advance of its
scheduled Due Date and that is not accompanied by an amount of
interest (without
regard to any Prepayment Premium or Yield Maintenance Charge that
may have been
collected) representing scheduled interest due on any date or dates
in any month
or months subsequent to the month of prepayment.
["Prohibited Transaction Exemption" shall mean Prohibited
Transaction Exemption [___] granted to [__________] by the United
States
Department of Labor, as such Prohibited Transaction Exemption may
be amended
from time to time.]
"Proposed Plan" shall have the meaning assigned thereto in
Section
3.18(a)(iii).
"Prospectus" shall mean the prospectus dated [________], 200_,
as
supplemented by the Prospectus Supplement, relating to the
Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement
dated
[________], 200_, relating to the Registered Certificates.
"Purchase Option Holders" shall have the meaning assigned thereto
in
Section 3.19(b).
"Purchase Price" shall mean, with respect to any Mortgage Loan
(or
REO Property), a cash price equal to the aggregate of: (a) the
outstanding
principal balance of such Mortgage Loan (or the successor REO Loan)
as of the
date of purchase, (b) all accrued and unpaid interest on such
Mortgage Loan (or
the successor REO Loan) to, but not including, the Due Date in the
Collection
Period of purchase (exclusive, however, of any portion of such
accrued but
unpaid interest that represents Default Interest), (c) all related
unreimbursed
Servicing Advances (including Advances that were reimbursed out of
general
collections of the Mortgage Pool and not reimbursed by, or on
behalf of, the
related Mortgagor), if any, (d) all accrued and unpaid interest, if
any, in
respect of related Advances in accordance with, as applicable,
Section 3.12(b)
and/or Section 4.03(d), and (e) in the case of a repurchase by the
applicable
Mortgage Loan Seller pursuant to Section 2.03(a) and the applicable
Mortgage
Loan Purchase Agreement, (i) to the extent not otherwise included
in the amount
described in clause (d) of this definition, any unpaid Special
Servicing Fees,
Workout Fees and other Additional Trust Fund Expenses with respect
to such
Mortgage Loan (or REO Property), including any Liquidation Fee
payable because
the subject repurchase occurred outside the applicable cure period
set forth in
Section 2.03 with respect to the Material Document Defect or
Material Breach
that gave rise to the repurchase, and (ii) to the extent not
otherwise included
in the amount described in clause (c) of this definition, any costs
and expenses
incurred by the Master Servicer, the Special Servicer or the
Trustee (on behalf
of the Trust) in enforcing the obligation of such Person to
purchase such
Mortgage Loan.
"Qualified Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a
"qualified
institutional buyer" as defined in Rule 144A under the Securities
Act.
"Qualified Insurer" shall mean an insurance company or security
or
bonding company qualified to write the related Insurance Policy in
the relevant
jurisdiction.
"Rated Final Distribution Date" shall mean, for the purposes of
this
Agreement, the Distribution Date in [________].
"Rating Agency" shall mean each of [_____] and [_____].
"Realized Loss" shall mean: (1) with respect to each Mortgage
Loan
as to which a Final Recovery Determination has been made, or with
respect to any
successor REO Loan as to which a Final Recovery Determination has
been made as
to the related REO Property, an amount (not less than zero) equal
to the excess,
if any, of (a) the sum of (i) the unpaid principal balance of such
Mortgage Loan
or REO Loan, as the case may be, as of the commencement of the
Collection Period
in which the Final Recovery Determination was made, plus (ii)
without taking
into account the amount described in subclause (1)(b) of this
definition, all
accrued but unpaid interest on such Mortgage Loan or such REO Loan,
as the case
may be, to but not including the Due Date in the Collection Period
in which the
Final Recovery Determination was made (exclusive, however, of any
portion of
such accrued but unpaid interest that represents Default Interest),
over (b) all
payments and proceeds, if any, Received in respect of such Mortgage
Loan or, to
the extent allocable to such REO Loan, the related REO Property, as
the case may
be, during the Collection Period in which such Final Recovery
Determination was
made, insofar as such payments and proceeds are allocable to
interest (other
than Default Interest) on or principal of such Mortgage Loan or REO
Loan; (2)
with respect to each Mortgage Loan as to which any portion of the
principal or
previously accrued interest payable thereunder was canceled in
connection with a
bankruptcy or similar proceeding involving the related Mortgagor or
a
modification, extension, waiver or amendment of such Mortgage Loan
granted or
agreed to by the Special Servicer pursuant to Section 3.21, the
amount of such
principal and/or interest (other than Default Interest) so
canceled; and (3)
with respect to each Mortgage Loan as to which the Mortgage Rate
thereon has
been permanently reduced and not recaptured for any period in
connection with a
bankruptcy or similar proceeding involving the related Mortgagor or
a
modification, extension, waiver or amendment of such Mortgage Loan
granted or
agreed to by the Special Servicer pursuant to Section 3.21, the
amount of the
consequent reduction in the interest portion of each successive
Monthly Payment
due thereon (each such Realized Loss shall be deemed to have been
incurred on
the Due Date for each affected Monthly Payment).
"Received" shall mean in the case of any Mortgage Loan or REO
Property, received by the Master Servicer or any of its
Sub-Servicers, the
Special Servicer or any of its Sub-Servicers or the Trustee, as the
case may be,
in any event on behalf of the Trust.
"Record Date" shall mean: with respect to the initial
Distribution
Date, the Closing Date; and, with respect to any other Distribution
Date, the
last Business Day of the month immediately preceding the month in
which such
Distribution Date occurs.
"Recording/Filing Agent" shall have the meaning assigned thereto
in
Section 2.01(c).
"Recovered Amount" shall have the meaning assigned thereto in
Section 1.03(c).
"Reference Rate" shall mean, with respect to any Interest
Accrual
Period, the rate per annum set forth on the Reference Rate
Schedule.
"Registered Certificate" shall mean any Certificate that has
been
the subject of registration under the Securities Act. As of the
Closing Date,
the [Class A-1, Class A-2, Class A-3, Class A-4, Class B, Class C,
Class D and
Class E] Certificates are Registered Certificates.
"Regular Interest Certificate" shall mean any Certificate other
than
a Class R-I Certificate or Class R-II Certificate.
"Regulation S" shall mean Regulation S under the Securities
Act.
"Regulation S Global Certificates" shall mean, with respect to
any
Class of Book-Entry Non-Registered Certificates offered and sold
outside of the
United States in reliance on Regulation S, one or more global
Certificates,
collectively, in definitive, fully registered form without interest
coupons,
each of which Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the
United
States in reliance on Regulation S, a legend generally to the
effect that such
Certificates may not be offered, sold, pledged or otherwise
transferred in the
United States or to a United States Securities Person prior to the
date that is
40 days after the later of (a) the commencement of the offering to
Persons other
than distributors in reliance on Regulation S, and (b) the date of
closing of
the offering, except pursuant to an exemption from the registration
requirements
of the Securities Act.
"Regulation S Restricted Certificate": Any Certificate that is
not
rated in one of the four highest generic ratings categories by a
Rating Agency.
"Regulation AB": Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be
amended from
time to time, and subject to such clarification and interpretation
as have been
provided by the Commission in the adopting release (Asset-Backed
Securities,
Securities Act Release No. 33-8518, 70 Red. 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.
"Reimbursement Rate"
shall mean the rate per annum applicable to the
accrual of interest, compounded annually, on Servicing Advances in
accordance
with Section 3.12(b) and on P&I Advances in accordance with, as
applicable,
Section 4.03(d), which rate per annum is equal to the Prime
Rate.
"Release Date" shall have the meaning assigned thereto in
Section
5.02(b).
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to a specific party, as set forth on Exhibit O attached
hereto. For
clarification purposes, multiple parties can have responsibility
for the same
Relevant Servicing Criteria. With respect to a Servicing Function
Participant
engaged by the Master Servicer, the Special Servicer or the
Trustee, the term
"Relevant Servicing Criteria" may refer to a portion of the
Relevant Servicing
Criteria applicable to the Master Servicer, the Special Servicer or
the Trustee.
"REMIC" shall mean a "real estate mortgage investment conduit"
as
defined in Section 860D of the Code.
"REMIC Pool" shall mean either of the Lower-Tier REMIC and/or
the
Upper-Tier REMIC, as applicable.
"REMIC Provisions" shall mean the provisions of the federal
income
tax law relating to REMICs, which appear at Sections 860A through
860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and
proposed,
temporary and final Treasury regulations and any published rulings,
notices and
announcements promulgated thereunder, as the foregoing may be in
effect from
time to time.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d)
of the Code.
"REO Account" shall mean the segregated account or accounts
created
and maintained by the Special Servicer pursuant to Section 3.17 on
behalf of the
Trustee in trust for the Certificateholders, which shall be
entitled "[______],
as Special Servicer, on behalf of [______], as Trustee, in trust
for the
registered holders of CWCapital Commercial Funding Corp.,
Commercial Mortgage
Trust 200_-___, Commercial Mortgage Pass-Through Certificates,
Series 200_-___."
"REO Acquisition" shall mean the acquisition of any REO
Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of
any
REO Property pursuant to Section 3.19.
"REO Extension" shall have the meaning assigned thereto in
Section
3.17(a).
"REO Loan" shall mean the mortgage loan deemed for purposes
hereof
to be outstanding with respect to each REO Property. Each REO Loan
shall be
deemed to provide for monthly payments of principal and/or interest
equal to its
Assumed Monthly Payment and otherwise to have the same terms and
conditions as
its predecessor 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).
"REO Mortgage Loan" shall mean any REO Loan that relates to a
predecessor Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired on
behalf
and in the name of the Trustee for the benefit of the
Certificateholders,
through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in
accordance with applicable law in connection with the default or
imminent
default of a Mortgage Loan.
"REO Revenues" shall mean all income, rents, profits and
proceeds
derived from the ownership, operation or leasing of any REO
Property.
"REO Tax" shall have the meaning assigned thereto in Section
3.18(a).
"Reportable Event" shall have the meaning assigned thereto in
Section 11.07.
"Reporting Servicer" shall have the meaning assigned thereto in
Section 11.10.
"Repurchased Note" shall have the meaning assigned thereto in
Section 3.29.
"Repurchased Percentage Interest" shall have the meaning
assigned
thereto in Section 3.29.
"Repurchasing Seller" shall have the meaning assigned thereto
in
Section 3.29.
"Request for Release" shall mean a request signed by a
Servicing
Officer of, as applicable, the Master Servicer in the form of
Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2
attached
hereto.
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from
an
Independent Appraiser selected by the party required or authorized
to obtain
such appraisal hereunder, which appraisal shall be prepared in
accordance with
12 CFR ss. 225.62 and conducted in accordance with the standards of
the
Appraisal Institute or, in the case of a Required Appraisal Loan
having a Stated
Principal Balance of, or in the case of a Mortgaged Property that
has an
allocated loan amount of, less than $2,000,000, if no satisfactory
(as
determined by the Special Servicer pursuant to Section 3.09(a))
appraisal
meeting the foregoing criteria was obtained or conducted within the
prior 12
months, a "desktop" value estimate performed by the Special
Servicer.
"Required Appraisal
Loan" shall mean any Mortgage Loan:
(i) that becomes a Modified Loan,
(ii) that is 60 days or more delinquent in respect of any
Monthly Payment, except for a Balloon Payment,
(iii) solely in the case of a delinquent Balloon Payment, a
Mortgage Loan shall be considered to be a Required Appraisal Loan
if
the
related Mortgagor has failed to make when due any Balloon
Payment; provided, however, if (x) the related Mortgagor is
actively
seeking a refinancing commitment, (y) the related Mortgagor
continues to make payments in the amount of its Assumed Monthly
Payment and (z) the Directing Holder consents, the Mortgage
Loan
will not be considered a Required Appraisal Loan until 60 days
beyond the related maturity date; and provided, further, if the
related Mortgagor has delivered to the Master Servicer, on or
before
the 60th day after the related maturity date, a refinancing
commitment reasonably acceptable to the Master Servicer, and
the
Mortgagor continues to make its payments in the amount of its
Assumed Monthly Payments, the Mortgage Loan will not be considered
a
Required Appraisal Loan until the earlier of (1) 120 days beyond
the
related maturity date and (2) the termination of the
refinancing
commitment;
(iv) with respect to which the related Mortgaged Property has
become an REO Property,
(v) with respect to which a receiver or similar official is
appointed and continues for 60 days in such capacity in respect
of
the related Mortgaged Property,
(vi) with respect to which the related Mortgagor is subject to
a bankruptcy, insolvency or similar proceedings, which, in the
case
of an involuntary bankruptcy, insolvency or similar proceeding,
has
not been dismissed within 60 days of the commencement thereof,
or
(vii) that remains outstanding five (5) years following any
extension of its maturity date pursuant to Section 3.21.
Any Required Appraisal Loan (other than a Mortgage Loan that became
a Required
Appraisal Loan pursuant to clause (vii) above) shall cease to be
such at such
time as it has become a Corrected Mortgage Loan (except if such
Required
Appraisal Loan had not become a Specially Serviced Mortgage Loan at
the time the
applicable event(s) described in any of clauses (i) through (vii)
above ceased
to exist), it has remained current for at least three (3)
consecutive Monthly
Payments, and no other event described in clauses (i) through (vii)
above has
occurred with respect thereto during the preceding three-month
period; provided
that the term "Required Appraisal Loan" shall include any successor
REO Loan(s).
"Required Appraisal Value" shall mean, with respect to any
Mortgaged
Property securing (or REO Property relating to) a Required
Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of
the Appraised
Value of such Mortgaged Property (or REO Property) as determined by
the most
recent Required Appraisal or any letter update of such Required
Appraisal (as it
may be adjusted downward by the Special Servicer in accordance with
the
Servicing Standard (without implying any duty to do so) based upon
its review of
the Appraisal or estimate and such other information as it may
deem
appropriate), over (ii) the amount of any obligations secured by
liens on such
Mortgaged Property (or REO Property) that are prior to the lien of
the related
Required Appraisal Loan; plus (b) the amount of Escrow Payments and
Reserve
Funds held by the Master Servicer in respect of such Required
Appraisal Loan
that (i) are not being held in respect of any real estate taxes and
assessments,
insurance premiums or, if applicable, ground rents, (ii) are not
otherwise
scheduled to be applied or utilized (except to pay debt service on
such Required
Appraisal Loan) within the twelve-month period following the date
of
determination and (iii) may be applied towards the reduction of the
principal
balance of such Required Appraisal Loan; plus (c) the amount of any
letter of
credit constituting additional security for such Required Appraisal
Loan and
that may be applied towards the reduction of the principal balance
of such
Required Appraisal Loan.
"Reserve Account" shall mean any account established by the
Master
Servicer, pursuant to Section 3.03(d), as to which Reserve Funds
shall be
deposited.
"Reserve Funds" shall mean, with respect to any Mortgage Loan,
any
amounts delivered by the related Mortgagor to be held by or on
behalf of the
mortgagee representing reserves for repairs, capital improvements
and/or
environmental remediation in respect of the related Mortgaged
Property or debt
service on such Mortgage Loan.
"Residual Interest Certificate" shall mean a Class R-I or Class
R-II
Certificate.
"Responsible Officer" shall mean when used with respect to the
Trustee, any Vice President, any Assistant Vice President, any
Trust Officer,
any Assistant Secretary or any other officer of the Trustee's
Asset-Backed
Services Trust Group customarily performing functions similar to
those performed
by any of the above designated officers and having direct
responsibility for the
administration of this Agreement.
"Review Package" shall mean a package of documents consisting of
a
memorandum outlining the analysis and recommendation (in accordance
with the
Servicing Standard) of the Master Servicer or the Special Servicer,
as the case
may be, with respect to the matters that are the subject thereof,
and copies of
all relevant documentation.
"Rule 144A Global Certificate" shall mean, with respect to any
Class
of Book-Entry Non-Registered Certificates, one or collectively more
global
certificates representing such Class registered in the name of the
Depository or
its nominee, in definitive, fully registered form without interest
coupons, none
of which certificates bears a Regulation S Legend, and each of
which
certificates has a Rule 144A CUSIP number.
"Sarbanes-Oxley Act" means the Sarbanes-Oxley Act of 2002 and
the
rules and regulations of the Commission promulgated thereunder
(including any
interpretations thereof by the Commission's staff).
"Sarbanes-Oxley Certification" shall have the meaning assigned
to
such term in Section 11.06.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Service(s)(ing)" means, in accordance with Regulation AB, the
act
of servicing and administering the Mortgage Loans or any other
assets of the
Trust by an entity that meets the definition of "servicer" set
forth in Item
1101 of Regulation AB and is subject to the disclosure requirements
set forth in
Item 1108 of Regulation AB. For clarification purposes, any
uncapitalized
occurrence of this term shall have the meaning commonly understood
by
participants in the commercial mortgage-backed securities
market.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the
products
obtained by multiplying, for each Mortgage Loan primary serviced by
such
Sub-Servicer, (i) the principal balance of such Mortgage Loan as of
the end of
the immediately preceding Collection Period and (ii) the
sub-servicing fee rate
specified in the related Sub-Servicing Agreement for such Mortgage
Loan; and (b)
with respect to the Master Servicer, as of any date of
determination, the
aggregate of the products obtained by multiplying, for each
Mortgage Loan (i)
the principal balance of such Mortgage Loan as of the end of the
immediately
preceding Collection Period and (ii) the excess, if any, of the
Master Servicing
Fee Rate for such Mortgage Loan over the sub-servicing fee rate (if
any)
applicable to such Mortgage Loan, as specified in any Sub-Servicing
Agreement
related to such Mortgage Loan.
"Servicer Reports" shall mean each of the files and reports
comprising the CMSA Investor Reporting Package (excluding the CMSA
Bond Level
File, the CMSA Collateral Summary File and CMSA Reconciliation of
Funds).
"Servicing Account" shall have the meaning assigned thereto in
Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys'
fees and fees
and expenses of real estate brokers) incurred by the Master
Servicer, the
Special Servicer or the Trustee in connection with the servicing
and
administration of a Mortgage Loan, if a default is imminent
thereunder or a
default, delinquency or other unanticipated event has occurred with
respect
thereto, or in connection with the administration of any REO
Property,
including, but not limited to, the cost of (a) compliance with the
obligations
of the Master Servicer, the Special Servicer or the Trustee, if
any, set forth
in Section 3.03(c), (b) the preservation, insurance, restoration,
protection and
management of a Mortgaged Property, including the cost of any
"forced placed"
insurance policy purchased by the Master Servicer to the extent
such cost is
allocable to a particular Mortgaged Property that the Master
Servicer or the
Special Servicer is required to cause to be insured pursuant to
Section 3.07(a),
(c) obtaining any Insurance Proceeds, Condemnation Proceeds or
Liquidation
Proceeds, (d) any enforcement or judicial proceedings with respect
to a
Mortgaged Property, including foreclosures, (e) any Required
Appraisal or any
other appraisal or update thereof expressly permitted or required
to be obtained
hereunder, (f) the operation, management, maintenance and
liquidation of any REO
Property, (g) obtaining any related ratings confirmation and (h)
the Master
Servicer, Special Servicer or Trustee fulfilling its obligations
under Section
2.03; provided that, notwithstanding anything to the contrary,
"Servicing
Advances" shall not include allocable overhead of the Master
Servicer, the
Special Servicer or the Trustee, such as costs for office space,
office
equipment, supplies and related expenses, employee salaries and
related expenses
and similar internal costs and expenses, or costs and expenses
incurred by any
such party in connection with its purchase of any Mortgage Loan or
REO Property
pursuant to any provision of this Agreement.
"Servicing Criteria" means the criteria set forth in paragraph
(d)
of Item 1122 of Regulation AB, as such may be amended from time to
time.
"Servicing Fees" shall mean with respect to each Mortgage Loan
(and
any successor REO Loan with respect thereto), the Master Servicing
Fee and the
Special Servicing Fee.
"Servicing File" shall mean, with respect to each Mortgage
Loan,
collectively, any and all documents (other than documents required
to be part of
the related Mortgage File) in the possession of the Master Servicer
or the
Special Servicer and relating to the servicing of any Mortgage
Loan, including
any original letter of credit (together with any transfer or
assignment
documents related thereto), any franchise agreement and any
franchise comfort
letter (together with any transfer or assignment documents relating
thereto),
appraisals, surveys, engineering reports, environmental reports,
opinion letters
of counsel to a related Mortgagor, escrow agreements, property
management
agreements and franchise agreements.
"Servicing Function Participant" means any Person, other than
the
Master Servicers, the Special Servicer and the Trustee, that,
within the meaning
of Item 1122 of Regulation AB, is performing activities that
address the
Servicing Criteria, unless such Person's activities relate only to
5% or less of
the Mortgage Loans (based on their Stated Principal Balance).
"Servicing Officer" shall mean any officer or employee of the
Master
Servicer or the Special Servicer involved in, or responsible for,
the
administration and servicing of the Mortgage Loans, whose name and
specimen
signature appear on a list of servicing officers furnished by such
party to the
Trustee and the Depositor on the Closing Date, as such list may be
amended from
time to time.
"Servicing-Released Bid" shall have the meaning assigned thereto
in
Section 7.01(c).
"Servicing-Retained Bid" shall have the meaning assigned thereto
in
Section 7.01(c).
"Servicing Standard" shall mean with respect to the Master
Servicer
or the Special Servicer, to service and administer the Mortgage
Loans and any
REO Properties that such party is obligated to service and
administer pursuant
to this Agreement: (i) in accordance with the higher of the
following standards
of care: (A) the same manner in which, and with the same care,
skill, prudence
and diligence with which, the Master Servicer or the Special
Servicer, as the
case may be, services and administers comparable mortgage loans
with similar
borrowers and comparable REO properties for other third-party
portfolios (giving
due consideration to the customary and usual standards of practice
of prudent
institutional commercial mortgage lenders servicing their own
mortgage loans and
REO properties), and (B) the same manner in which, and with the
same care,
skill, prudence and diligence with which, the Master Servicer or
the Special
Servicer, as the case may be, services and administers comparable
mortgage loans
owned by the Master Servicer or the Special Servicer, as the case
may be, in
either case exercising reasonable business judgment and acting in
accordance
with applicable law, the terms of this Agreement and the terms of
the respective
Mortgage Loans; (ii) with a view to: the timely recovery of all
payments of
principal and interest, including Balloon Payments, under the
Mortgage Loans or,
in the case of any such Mortgage Loan that is (1) a Specially
Serviced Mortgage
Loan or (2) a Mortgage Loan as to which the related Mortgaged
Property has
become an REO Property, the maximization of recovery on the
Mortgage Loan to the
Certificateholders (as a collective whole) to be performed at the
related
Mortgage Rate; and (iii) without regard to (A) any relationship,
including as
lender on any other debt, that the Master Servicer or the Special
Servicer, as
the case may be, or any Affiliate thereof, may have with any of the
related
Mortgagors, or any Affiliate thereof, or any other party to this
Agreement; (B)
the ownership of any Certificate by the Master Servicer or the
Special Servicer,
as the case may be, or any Affiliate thereof; (C) the obligation of
the Master
Servicer or the Special Servicer, as the case may be, to make
Advances; (D) the
right of the Master Servicer or the Special Servicer, as the case
may be, or any
Affiliate of either of them, to receive compensation or
reimbursement of costs
hereunder generally or with respect to any particular transaction;
and (E) the
ownership, servicing or management for others of any other mortgage
loan or real
property not subject to this Agreement by the Master Servicer or
the Special
Servicer, as the case may be, or any Affiliate thereof.
"Servicing Transfer Event" shall mean, with respect to any
Mortgage
Loan, the occurrence of any of the events described in clauses (a)
through (h)
of the definition of "Specially Serviced Mortgage Loan."
"Similar Law" shall have the meaning assigned thereto in
Section
5.02(c).
"Single
Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate evidencing an initial
$1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents and/or the related
Mortgage Loan
documents provide substantially to the effect that: (i) it was
formed or
organized solely for the purpose of either owning and operating the
Mortgaged
Property or Properties securing one or more Mortgage Loans, or
owning and
pledging Defeasance Collateral in connection with the defeasance of
a Defeasance
Loan, as the case may be, (ii) it may not engage in any business
unrelated to
such Mortgaged Property or Properties or such Defeasance
Collateral, as the case
may be, (iii) it will not have any assets other than those related
to its
interest in and operation of such Mortgaged Property or such
Defeasance
Collateral, as the case may be, (iv) it may not incur indebtedness
other than
incidental to its ownership and operation of the applicable
Mortgaged Property
or Properties or Defeasance Collateral, as the case may be, (v) it
will maintain
its own books and records and accounts separate and apart from any
other Person,
(vi) it will hold itself out as a legal entity, separate and apart
from any
other Person, and (vii) in the case of such an entity whose sole
purpose is
owning or operating a Mortgaged Property, it will have an
independent director
or, if such entity is a partnership or a limited liability company,
at least one
general partner or limited liability company member thereof, as
applicable,
which shall itself be a "single purpose entity" (having as its sole
asset its
interest in the Single Purpose Entity) with an independent
director.
"Special Servicer" shall mean [______], in its capacity as
special
servicer hereunder, or any successor special servicer appointed as
herein
provided.
"Special Servicing Fee" shall mean, with respect to each
Specially
Serviced Mortgage Loan and each REO Loan, the fee designated as
such in, and
payable to the Special Servicer pursuant to, Section 3.11(b).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Loan, [__]% per
annum, subject to
a minimum monthly fee of $4,000 for each Specially Serviced
Mortgage Loan and
each REO Loan.
"Specially Serviced Mortgage Loan" shall mean any Mortgage Loan
as
to which any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any
Monthly
Payment
(including a Balloon Payment), which failure continues, or the
Master
Servicer determines, in its reasonable, good faith judgment,
will
continue,
unremedied (without regard to any grace period) (i) except in
the case
of a Balloon Loan delinquent in respect of its Balloon Payment,
for 60
days beyond the date on which the subject payment was due, or
(ii)
solely in
the case of a delinquent Balloon Payment, (A) for one Business
Day beyond
the date on which the subject Balloon Payment was due or (B) in
the case
of a Balloon Loan as to which the related Mortgagor shall have
delivered
a refinancing commitment acceptable to the Special Servicer
prior to
the date the subject Balloon Payment was due, for 30 days
beyond
the date
on which the subject Balloon Payment was due (or for such
shorter
period
beyond the date on which the subject Balloon Payment was due
during
which the
refinancing is scheduled to occur);
(b) the Master Servicer or Special Servicer (in the case of the
Special
Servicer, with the consent of the applicable Directing Holder,
subject to
Section 6.11) shall have determined in accordance with the
Servicing
Standard, based on communications with the related Mortgagor,
that a
default in the making of a Monthly Payment on such Mortgage
Loan,
including
a Balloon Payment, is likely to occur and is likely to remain
unremedied
(without regard to any grace period) for at least the
applicable
period contemplated by clause (a) of this definition; or
(c) there shall have occurred a default (other than as described
in
clause (a)
above and other than an Acceptable Insurance Default) that (i)
in the
judgment of the Master Servicer or the Special Servicer (in the
case of
the Special Servicer, with the consent of the applicable
Directing
Holder,
subject to Section 6.11) materially impairs the value of the
related
Mortgaged Property as security for such Mortgage Loan or
otherwise
materially
adversely affects the interests of Certificateholders, and (ii)
continues
unremedied for the applicable grace period under the terms of
such
Mortgage Loan (or, if no grace period is specified and the default
is
capable of
being cured, for 30 days); provided that any default that
results in
acceleration of the related Mortgage Loan without the
application of any grace period under the related Mortgage Loan
documents
shall be
deemed not to have a grace period; and provided, further, that
any
default requiring a Servicing Advance shall be deemed to
materially
and
adversely affect the interests of Certificateholders; or
(d) the Master Servicer or the Special Servicer (in the case of
the
Special
Servicer, with the consent of the applicable Directing Holder,
subject to
Section 6.11) has determined that (i) a default (other than as
described
in clause (b) of this definition) under the Mortgage Loan is
imminent,
(ii) such default will materially impair the value of the
related
Mortgaged Property as security for such Mortgage Loan or
otherwise
materially
adversely affects the interests of Certificateholders, and
(iii) the
default is likely to continue unremedied for the applicable
grace
period under the terms of such Mortgage Loan (or, if no grace
period
is
specified and the default is capable of being cured, for 30
days);
provided
that any default that results in acceleration of the related
Mortgage
Loan without the application of any grace period under the
related
Mortgage Loan documents shall be deemed not to have a grace
period;
and provided, further, that any determination that a Servicing
Transfer
Event has occurred under this clause (d) with respect to any
Mortgage
Loan solely by reason of the failure of the related Mortgagor
to
maintain
or cause to be maintained insurance coverage against damages or
losses
arising from acts of terrorism will be subject to Section 6.11,
and
the second
paragraph of Section 3.07(a); or
(e) a decree or order of a court or agency or supervisory
authority
having
jurisdiction in the premises in an involuntary case under any
present or
future federal or state bankruptcy, insolvency or similar law
or the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and
liabilities or
similar
proceedings, or for the winding-up or liquidation of its
affairs,
shall have
been entered against the related Mortgagor and such decree or
order
shall have remained in force and not dismissed for a period of
60
days;
or
(f) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of
debt,
marshaling of assets and liabilities or similar proceedings of
or
relating
to such Mortgagor or of or relating to all or substantially all
of its
property; or
(g) the related Mortgagor shall admit in writing its inability
to
pay its
debts generally as they become due, file a petition to take
advantage
of any applicable insolvency or reorganization statute, make an
assignment
for the benefit of its creditors, or voluntarily suspend
payment of
its obligations; or
(h) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to
the
related
Mortgaged Property;
provided, however, that a Mortgage Loan will cease to be a
Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred with respect
to such
Mortgage Loan, when the related Mortgaged Property has become an
REO Property
or, so long as at such time no circumstance identified in clauses
(a) through
(h) above exists that would cause the Mortgage Loan to continue to
be
characterized as a Specially Serviced Mortgage Loan, when:
(w) with respect to the circumstances described in clause (a)
of
this definition, the related Mortgagor has made three consecutive
full and
timely Monthly Payments under the terms of such 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,
extension,
waiver or amendment granted or agreed to by the Master Servicer or
the Special
Servicer pursuant to Section 3.21);
(x) with respect to the circumstances described in clauses (b),
(d),
(e), (f) and (g) of this definition, such circumstances cease to
exist in the
good faith, reasonable judgment of the Special Servicer, but, with
respect to
any bankruptcy or insolvency proceedings described in clauses (e),
(f) and (g),
no later than the entry of an order or decree dismissing such
proceeding;
(y) with respect to the circumstances described in clause (c)
of
this definition, such default is cured as determined by the Special
Servicer in
its reasonable, good faith judgment; and
(z) with respect to the circumstances described in clause (h)
of
this definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master
Servicer's
determination and the Master Servicer may conclusively rely on the
Special
Servicer's determination as to whether a Servicing Transfer Event
has occurred
giving rise to a Mortgage Loan's becoming a Specially Serviced
Mortgage Loan.
"Startup Day" shall mean, with respect to each REMIC Pool, the
day
designated as such in Section 10.01(c).
"Stated Maturity Date" shall mean, with respect to any Mortgage
Loan, the Due Date specified in the related Mortgage Note (as in
effect on the
Closing Date) on which the last payment of principal is due and
payable under
the terms of such Mortgage Note (as in effect on the Closing Date),
without
regard to any change in or modification of such terms in connection
with a
bankruptcy or similar proceeding involving the related Mortgagor or
a
modification, extension, waiver or amendment of such Mortgage Loan
granted or
agreed to by the Special Servicer pursuant to Section 3.21.
"Stated Principal Balance" shall mean with respect to any
Mortgage
Loan (and any successor REO Mortgage Loan with respect thereto),
the Cut off
Date Balance of such Mortgage Loan, as permanently reduced on each
Distribution
Date (to not less than zero) by (i) any principal payments (whether
received or
advanced) or other collections in respect of such Mortgage Loan
that were
identified and applied as a recovery of principal for such Mortgage
Loan (or any
such successor REO Mortgage Loan with respect thereto) during the
related
Collection Period, (ii) the principal portion of any Realized Loss
incurred in
respect of such Mortgage Loan (or any such successor REO Mortgage
Loan with
respect thereto) during the related Collection Period.
Other than for purposes of determining the Weighted Average Net
Mortgage Rate, the Stated Principal Balance of the Mortgage Pool
will not be
reduced by the amount of any principal collections from the
Mortgage Pool that
were used to reimburse a Workout-Delayed Reimbursement Amount
pursuant to
Section 3.05(a)(vii), unless the corresponding Advance was
determined to be a
Nonrecoverable Advance.
Notwithstanding the foregoing, if a Liquidation Event or Final
Recovery Determination occurs in respect of any Mortgage Loan or
REO Property,
then the "Stated Principal Balance" of such Mortgage Loan or of the
related REO
Loan, as the case may be, shall be zero commencing as of the
Distribution Date
in the Collection Period next following the Collection Period in
which such
Liquidation Event occurred.
"Sub-Servicer" means any person that Services Mortgage Loan on
behalf of the Master Servicer, the Special Servicer or an
Additional Servicer
and is responsible for the performance (whether directly or
through
Sub-Servicers or Subcontractors) of a substantial portion of the
material
servicing functions required to be performed by the Master
Servicer, the Special
Servicer or an Additional Servicer under this Agreement, with
respect to some or
all of the Mortgage Loans, that are identified in the Servicing
Criteria.
"Sub-Servicing Agreement" shall mean the written contract
between
the Master Servicer or the Special Servicer, on the one hand, and
the Primary
Servicer or any Sub-Servicer, on the other hand, relating to
servicing and
administration of Mortgage Loans as provided in Section 3.23.
"Subcontractor" means any vendor, subcontractor or other Person
that
is not responsible for the overall servicing (as "servicing" is
commonly
understood by participants in the mortgaged-backed securities
market) of
Mortgage Loans but performs one or more discrete functions of the
Servicing
Criteria with respect to Mortgage Loans under the direction or
authority of the
Master Servicer, the Special Servicer, the Trustee, an Additional
Servicer, or a
Sub-Servicer.
"Successful Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Supplemental Servicer Schedule": With respect to the Mortgage
Loans
to be serviced by the Master Servicer, a list attached hereto as
Schedule VI,
which list sets forth the following information with respect to
each Mortgage
Loan:
(i) the
Mortgagor's name;
(ii)
property type;
(iii) the
original balance;
(iv)
the original and remaining amortization term;
(v) whether
such Mortgage Loan has a guarantor;
(vi)
whether such Mortgage Loan is secured by a letter of
credit;
(vii) the
current balance and monthly amount of any reserve
or escrowed funds;
(viii) the grace
period with respect to both default
interest and late payment charges;
(ix)
whether such Mortgage Loan is insured by RVI, lease
enhancement policy or environmental policies;
(x) whether an
operation and maintenance plan exists and,
if so, what repairs are required;
(xi)
whether a cash management agreement or lock-box
agreement is in place; and
(xii) the
number of units, pads, rooms or square feet of
the Mortgaged Property.
Such list may be in the form of more than one list, collectively
setting forth
all of the information required.
"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 8.13 (or, in the absence of any such
appointment, the
Trustee).
"Tax Matters Person" shall mean, with respect to each REMIC
Pool,
the Person designated as the "tax matters person" of such REMIC
Pool in the
manner provided under Treasury Regulations Section 1.860F-4(d) and
Treasury
Regulations Section 301.6231(a)(7)-1, which Person shall be the
Plurality
Residual Interest Certificateholder in respect of the related Class
of Residual
Interest Certificates.
"Tax Returns" shall mean the federal income tax return on
Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment
Conduit (REMIC)
Income Tax Return, including Schedule Q thereto, Quarterly Notice
to Residual
Interest Holders of REMIC Taxable Income or Net Loss Allocation, or
any
successor forms, to be filed on behalf of each REMIC Pool due to
its
classification as a REMIC under the REMIC Provisions, together with
any and all
other information, reports or returns that may be required to be
furnished to
the Certificateholders or filed with the IRS under any applicable
provisions of
federal tax law or any other governmental taxing authority under
applicable
state and local tax law.
"Total Principal Reinstatement Amount" shall mean, with respect
to
any Distribution Date, an amount (to be calculated by the Trustee
immediately
following, and after taking into account, all distributions to be
made with
respect to the Certificates on such Distribution Date) equal to the
least of:
(1) the Additional Principal Distribution Amount for the subject
Distribution
Date; (2) the amount, if any, by which (a) the aggregate Stated
Principal
Balance of the Mortgage Pool that will be outstanding immediately
following the
subject Distribution Date, exceeds (b) the aggregate of the Class
Principal
Balances of all the Classes of Principal Balance Certificates
(after taking into
account the distributions made with respect to the Certificates on
such
Distribution Date, but prior to any adjustments to any of those
Classes of
Principal Balance Certificates pursuant to Section 4.04 or Section
4.05); and
(3) the aggregate Loss Reimbursement Amount in respect of the
Principal Balance
Certificates for the subject Distribution Date (reduced by all
distributions
made with respect to the Principal Balance Certificates in
reimbursement of such
aggregate Loss Reimbursement Amount on the subject Distribution
Date).
"Transfer" shall mean any direct or indirect transfer, sale,
pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning
assigned
thereto in Section 5.02(d)(i)(B).
"Transfer Date" shall have the meaning assigned thereto in
Section
5.02(b).
"Transferee" shall mean any Person who is acquiring, by
Transfer,
any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing of, by
Transfer,
any Ownership Interest in a Certificate.
"Trust" shall mean the common law trust created hereunder.
"Trust Fund" shall mean, collectively, all of the assets of the
Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee" shall mean [______], in its capacity as trustee
hereunder,
or any successor trustee appointed as herein provided.
"Trustee Fee" shall mean, with respect to each Distribution Date,
an
amount equal to one-twelfth of the product of (i) the Trustee Fee
Rate,
multiplied by (ii) the aggregate Stated Principal Balance of the
Mortgage Pool
outstanding immediately prior to such Distribution Date.
"Trustee Fee Rate" shall mean [__]% per annum.
"Trustee Liability" shall have the meaning assigned thereto in
Section 8.05(b).
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement
executed
(if required by the UCC) and filed pursuant to the UCC.
"Uncertificated Lower-Tier Interest" shall mean each separate
non-certificated beneficial ownership interest in the Lower-Tier
REMIC issued
hereunder and designated as a "regular interest" in the Lower-Tier
REMIC. Each
Uncertificated Lower-Tier Interest shall accrue interest at the
Weighted Average
Net Mortgage Rate, and shall be entitled to distributions of
principal, subject
to the terms and conditions hereof, in an aggregate amount equal to
its initial
Uncertificated Principal Balance as set forth in the Preliminary
Statement
hereto. The designations for the respective Uncertificated
Lower-Tier Interests
are set forth in the Preliminary Statement hereto.
"Uncertificated Principal Balance" shall mean the principal
balance
of any Uncertificated Lower-Tier Interest outstanding as of any
date of
determination. As of the Closing Date, the Uncertificated Principal
Balance of
each Uncertificated Lower-Tier Interest shall equal the amount set
forth in the
Preliminary Statement hereto. On each Distribution Date, the
Uncertificated
Principal Balance of each Uncertificated Lower-Tier Interest shall
be
permanently reduced by all distributions of principal deemed to
have been made
thereon on such Distribution Date pursuant to Section 4.01(i), and
shall be
further permanently reduced on such Distribution Date by all
Realized Losses and
Additional Trust Fund Expenses deemed to have been allocated
thereto on such
Distribution Date pursuant to Section 4.04(b).
"Underwriters" shall mean [____________] and [___________], and
their respective successors in interest.
"Unfunded Principal Balance Reduction" shall mean any reduction
made
in the Class Principal Balance of any Class of Principal Balance
Certificates
pursuant to Section 4.04(a) or the Uncertificated Principal Balance
of any
Uncertificated Lower-Tier Interest pursuant to Section 4.04(b).
"United States Tax Person" shall mean a citizen or resident of
the
United States, a corporation, partnership or other entity created
or organized
in, or under the laws of, the United States or any State thereof or
the District
of Columbia, or an estate whose income from sources without the
United States is
includible in gross income for United States federal income tax
purposes
regardless of its connection with the conduct of a trade or
business within the
United States, or a trust if a court within the United States is
able to
exercise primary supervision over the administration of the trust
and one or
more such United States Tax Persons have the authority to control
all
substantial decisions of the trust (or to the extent provided in
the Treasury
regulations, if the trust was in existence on August 20, 1996 and
elected to be
treated as a United States person), all within the meaning of
Section
7701(a)(30) of the Code.
"United States Securities Person" shall mean any "U.S. person"
as
defined in Rule 902(k) of Regulation S.
"Unliquidated Advance" shall mean any Advance previously made by
a
party hereto that has been previously reimbursed, as between the
Person that
made the Advance hereunder, on the one hand, and the Trust Fund, on
the other,
as part of a Workout-Delayed Reimbursement Amount pursuant to
subsections (ii)
and (vi) of Section 3.05(a) but that has not been recovered from
the Mortgagor
or otherwise from collections on or the proceeds of the Mortgage
Loan or REO
Property in respect of which the Advance was made.
"Upper-Tier Distribution Account" shall mean the subaccount
deemed
to be a part of the Distribution Account and maintained by the
Trustee pursuant
to Section 3.04(b).
"Upper-Tier REMIC" One of the two separate REMICs comprising
the
Trust Fund, the assets of which consist of the Uncertificated
Lower-Tier
Interests and such amounts as shall from time to time be held in
the Upper-Tier
Distribution Account.
"Voting Rights" shall mean the portion of the voting rights of
all
of the Certificates that is allocated to any Certificate. At all
times during
the term of this Agreement, 99% of the Voting Rights shall be
allocated among
the Holders of the various Classes of the Principal Balance
Certificates in
proportion to the respective Class Principal Balances of their
Certificates, and
1% of the Voting Rights shall be allocated to the Holders of the
Class XP and
Class XC Certificates, pro rata, based on the Class XP Notional
Amount and Class
XC Notional Amount, respectively. Voting Rights allocated to a
Class of
Certificateholders shall be allocated among such Certificateholders
in
proportion to the Percentage Interests evidenced by their
respective
Certificates. No Voting Rights shall be allocated to the Class R-I
or Class R-II
Certificates.
"Weighted Average Net Mortgage Rate" shall mean, with respect to
any
Distribution Date, the weighted average of the Net Mortgage Rates
of the
Mortgage Loans as of the first day of the related Collection
Period, weighted on
the basis of their respective Stated Principal Balances as of the
first day of
such Collection Period (after giving effect to any payments
received during any
applicable grace period).
"Workout-Delayed Reimbursement Amounts" shall mean with respect
to
any Mortgage Loan, the amount of any Advance made with respect to
such Mortgage
Loan on or before the date such Mortgage Loan becomes (or, but for
the making of
three Monthly Payments under its modified terms, would then
constitute) a
Corrected Mortgage Loan, together with (to the extent accrued and
unpaid)
interest on such Advances, to the extent that (i) such Advance is
not reimbursed
to the Person who made such Advance on or before the date, if any,
on which such
Mortgage Loan becomes a Corrected Mortgage Loan and (ii) the amount
of such
Advance becomes an obligation of the Mortgagor to pay such amount
under the
terms of the modified Mortgage Loan documents.
"Workout Fee" shall mean the fee designated as such in, and
payable
to the Special Servicer with respect to certain collections on each
Corrected
Mortgage Loan pursuant to, Section 3.11(b).
"Workout Fee Rate" shall mean, with respect to each Corrected
Mortgage Loan as to which a Workout Fee is payable, [__]%.
"Yield Maintenance Charge" shall mean the payments paid or
payable,
as the context requires, as the result of a Principal Prepayment
on, or other
early collection of principal of, a Mortgage Loan, which payments
are not
otherwise due thereon in respect of principal or interest and have
been
calculated (based on scheduled payments of interest and/or
principal on such
Mortgage Loan) to compensate the Holder for reinvestment losses
based on the
value of an interest rate index at or near the time of prepayment.
Any other
prepayment premiums, penalties and fees not so calculated will not
be considered
"Yield Maintenance Charges." In the event that a Yield Maintenance
Charge shall
become due for any particular Mortgage Loan, the Master Servicer
shall be
required to follow the terms and provisions contained in the
applicable Mortgage
Note, provided, however, in the event the particular Mortgage Note
shall not
specify the U.S. Treasuries which shall be used in determining the
discount rate
or the reinvestment yield to be applied in such calculation, the
Master Servicer
shall be required to use those U.S. Treasuries which shall generate
the lowest
discount rate or reinvestment yield for the purposes thereof.
Accordingly, if
either no U.S. Treasury issue, or more than one U.S. Treasury
issue, shall
coincide with the term over which the Yield Maintenance Charge
shall be
calculated (which depending on the applicable Mortgage Note is
based on the
remaining average life of the Mortgage Loan or the actual term
remaining through
the related Stated Maturity Date), the Master Servicer shall use
the applicable
U.S. Treasury whose reinvestment yield is the lowest, with such
yield being
based on the bid price for such issue as published in The Wall
Street Journal on
the date that is 14 days prior to the date that the Yield
Maintenance Charge
shall become due and payable (or, if such bid price is not
published on that
date, the next preceding date on which such bid price is so
published) and
converted to a monthly compounded nominal yield. The monthly
compounded nominal
yield ("MEY") is derived from the reinvestment yield or discount
rate and shall
be defined as MEY = (12 X [{(1+ "BEY"/2) ^1/6}-1]) X 100, where BEY
is defined
as the U.S. Treasury Reinvestment Yield which is in decimal form
and not in
percentage, and 1/6 is the exponential power to which a portion of
the equation
is raised. For example, using a BEY of 5.50%, the MEY = (12 X [{(1+
.055/2) ^
0.16667}- 1]) X 100 where .055 is the decimal version of the
percentage 5.5% and
0.16667 is the decimal version of the exponential power. The MEY in
the above
calculation is 5.44%.
Section 1.02 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as
well
as the
singular, and the use of any gender herein shall be deemed to
include
the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings
assigned
to them in accordance with GAAP;
(iii) references herein to "Articles," "Sections,"
"Subsections,"
"Paragraphs" and other subdivisions without reference to a document
are to
designated
Articles, Sections, Subsections, Paragraphs and other
subdivisions of this
Agreement;
(iv) a reference to a Subsection without further reference to a
Section is
a reference to such Subsection as contained in the same Section
in which
the reference appears, and this rule shall also apply to
Paragraphs
and other subdivisions;
(v) the words "herein," "hereof," "hereunder," "hereto,"
"hereby"
and other
words of similar import refer to this Agreement as a whole and
not to any
particular provision; and
(vi)
the terms "include" or "including" shall mean without
limitation
by reason of enumeration.
Section 1.03 Certain Adjustments to the Principal Distributions
on
the Certificates.
(a) If any party hereto is reimbursed out of general collections
on
the Mortgage Pool on deposit in the Custodial Account for any
unreimbursed
Advances that have been or are determined to be Nonrecoverable
Advances
(together with interest accrued and payable thereon pursuant to
Section 3.12(b)
or Section 4.03(d), as applicable, to the extent such interest was
paid
hereunder from a source other than Default Charges Received by the
Trust on the
Mortgage Pool), then (for purposes of calculating distributions on
the
Certificates) each such reimbursement and payment of interest shall
be deemed to
have been made:
(i) first, out of any amounts then on deposit in the Custodial
Account
that represent payments or other collections of principal
Received
by the
Trust that, but for their application to reimburse a
Nonrecoverable
Advance
and/or to pay interest thereon, would be included in the
Available
Distribution Amount for the related Distribution Date;
(ii) second, out of any amounts then on deposit in the
Custodial
Account
that represent any other payments or other collections Received
by
the Trust
that, but for their application to reimburse a Nonrecoverable
Advance
and/or to pay interest thereon, would be included in the
Available
Distribution
Amount for the related Distribution Date;
(iii) third, out of any amounts representing payments or other
collections of principal Received by the Trust that, but for
their
application to reimburse a Nonrecoverable Advance and/or to pay
interest
thereon,
would be included in the Available Distribution Amount for any
subsequent
Distribution Date;
(iv) fourth, out of any amounts representing any other payments
or
other
collections Received by the Trust that, but for their application
to
reimburse
a Nonrecoverable Advance and/or to pay interest thereon, would
be
included in the Available Distribution Amount for any
subsequent
Distribution Date; and
(v) fifth, out of any other amounts then on deposit in the
Custodial
Account
that may be available to reimburse the subject Nonrecoverable
Advance
and/or to pay interest thereon.
(b) If and to the extent that any payment or other collection
of
principal of any Mortgage Loan or REO Mortgage Loan is deemed to be
applied in
accordance with Section 1.03(a)(i) to reimburse a Nonrecoverable
Advance or to
pay interest thereon or is applied to reimburse a Workout-Delayed
Reimbursement
Amount, and further if and to the extent that such payment or other
collection
of principal constitutes part of the Principal Distribution Amount
for any
Distribution Date, then for purposes of calculating the Adjusted
Principal
Distribution Amount, for such Distribution Date, the amount of such
payment or
other collection of principal shall be subtracted from the
Principal
Distribution Amount for such Distribution Date.
(c) If and to the extent that any Advance is determined to be a
Nonrecoverable Advance, such Advance or interest thereon is
reimbursed out of
general principal collections on the Mortgage Pool as contemplated
by Section
1.03(a) above or if any Workout-Delayed Reimbursement Amount is
paid from
principal collections on the Mortgage Pool, and the particular item
for which
such Advance was originally made is subsequently collected (in
whole or in part)
out of payments or other collections in respect of the related
Mortgage Loan or
REO Mortgage Loan (such item, and interest thereon, to the extent
such interest
was paid out of general collections on the Mortgage Pool, if and to
the extent
so collected, a "Recovered Amount"), then for purposes of
calculating the
Adjusted Principal Distribution Amount for the Distribution Date
that
corresponds to the Collection Period in which such item was
recovered, such
Recovered Amount (to the extent not already included therein) shall
be added to
the Principal Distribution Amount for such Distribution Date.
(d) Nothing contained in this Section 1.03 is intended to limit
the
ability of any party hereto that is entitled to reimbursement
hereunder for any
unreimbursed Advances that have been or are determined to be
Nonrecoverable
Advances (together with interest accrued and payable thereon
pursuant to Section
3.12(b) or Section 4.03(d)) to collections of principal Received by
the Trust
with respect to the Mortgage Pool; instead the order of priority
set forth in
Section 1.03(a) is a deemed allocation only for purposes of
calculating
distributions on the Certificates.
Section 1.04 Certain Calculations Relating to REO Loans.
Each REO Loan shall be deemed to have an initial unpaid
principal
balance and Stated Principal Balance equal to the unpaid principal
balance and
Stated Principal Balance, respectively, of its predecessor Mortgage
Loan as of
the date of the related REO Acquisition. All Monthly Payments
(other than a
Balloon Payment), Assumed Monthly Payments (in the case of a
Balloon Loan
delinquent in respect of its Balloon Payment) and other amounts due
and owing,
or deemed to be due and owing, in respect of the predecessor
Mortgage Loan as of
the date of the related REO Acquisition, shall be deemed to
continue to be due
and owing in respect of an REO Loan.
Amounts Received with respect to each REO Loan that is a
successor
to a Mortgage Loan (after provision for amounts to be applied to
the payment of,
or to be reimbursed (1) to the Master Servicer or the Special
Servicer for the
payment of, the costs of operating, managing and maintaining the
related REO
Property and (2) to the Master Servicer, the Special Servicer or
the Trustee for
the reimbursement of any outstanding unreimbursed Advances on such
REO Loan (and
predecessor Mortgage Loan) and interest thereon) shall be treated:
first, as a
recovery of any amounts withdrawn from general principal
collections on the
Mortgage Pool in order to reimburse any Workout-Delayed
Reimbursement Amounts
and Nonrecoverable Advance with respect to such Mortgage Loan and
interest on
any such Advance; second, as a recovery of accrued and unpaid
interest on such
REO Loan at the related Mortgage Rate to but not including the Due
Date in the
Collection Period of receipt; third, as a recovery of principal of
such REO Loan
to the extent of its entire unpaid principal balance (to the extent
not already
reimbursed pursuant to clause first above); and fourth, in
accordance with the
normal servicing practices of the Master Servicer, as a recovery of
any other
amounts due and owing in respect of such REO Loan. Notwithstanding
the
foregoing, all amounts payable or reimbursable to the Master
Servicer, the
Special Servicer, the Trustee or the Trust in respect of the
predecessor
Mortgage Loan as of the date of the related REO Acquisition,
including any
unpaid Servicing Fees and any unreimbursed Servicing Advances and
P&I Advances,
together with any interest accrued and payable to the Master
Servicer, the
Special Servicer or the Trustee in respect of such Servicing
Advances and P&I
Advances (including any Unliquidated Advance) in accordance with
Sections
3.12(b) and 4.03(d), respectively, shall continue to be payable or
reimbursable
to the Master Servicer, the Special Servicer, the Trustee or the
Trust, as the
case may be, in respect of an REO Loan.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Creation of Trust; Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and that such trust
be
designated as "Commercial Mortgage Trust 200_-___, Commercial
Mortgage
Pass-Through Certificates, Series 200_-___." [______] is hereby
appointed, and
does hereby agree, to act as Trustee hereunder and, in such
capacity, to hold
the Trust Fund in trust for the exclusive use and benefit of all
present and
future Certificateholders. The Depositor, concurrently with the
execution and
delivery hereof, does hereby assign, sell, transfer, set over and
otherwise
convey to the Trustee in trust, without recourse, for the benefit
of the
Certificateholders, all the right, title and interest of the
Depositor in, to
and under (i) the Mortgage Loans, (ii) the Mortgage Loan Purchase
Agreement and
(iii) all other assets included or to be included in the Trust
Fund. Such
assignment includes all interest and principal received or
receivable on or with
respect to the Mortgage Loans and due after the Cut-off Date.
The parties hereto acknowledge and agree that, notwithstanding
Section 12.07, the transfer of the Mortgage Loans and the related
rights and
property accomplished hereby is absolute and is intended by them to
constitute a
sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct each Mortgage
Loan Seller
(pursuant to the applicable Mortgage Loan Purchase Agreement) to
deliver to and
deposit with the Trustee or a Custodian appointed thereby (with a
copy to the
Master Servicer), on or before the Closing Date, the Mortgage File
for each
Mortgage Loan, with copies of the related reserve and cash
management agreements
for such Mortgage Loan to be delivered to the Master Servicer and
the Special
Servicer. None of the Trustee, any Custodian, the Master Servicer
or the Special
Servicer shall be liable for any failure by a 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).
After the Depositor's transfer of the Mortgage Loans to the
Trustee
pursuant to this Section 2.01(b), the Depositor shall not take any
action
inconsistent with the Trust's ownership of the Mortgage Loans.
(c) The Depositor hereby represents and warrants that each
Mortgage
Loan Seller has covenanted in the applicable Mortgage Loan Purchase
Agreement
that it shall bear the costs related to recording or filing, as the
case may be,
in the appropriate public office for real property records or UCC
Financing
Statements, as appropriate, each related assignment of Mortgage and
assignment
of Assignment of Leases, in favor of the Trustee referred to in
clause (a)(iv)
of the definition of "Mortgage File" and each related UCC-2 and
UCC-3 assignment
referred to in clause (a)(viii) of the definition of "Mortgage
File" and the
Trustee shall promptly undertake to record or file any such
document upon its
receipt thereof.
The
Depositor hereby represents and warrants that each Mortgage
Loan
Seller has covenanted in the applicable Mortgage Loan Purchase
Agreement as to
each Mortgage Loan, that if it cannot deliver or cause to be
delivered the
documents and/or instruments referred to in clauses (a)(ii),
(a)(iii), (a)(vi)
(if recorded) and (a)(viii) of the definition of "Mortgage File"
solely because
of a delay caused by the public recording office where such
document or
instrument has been delivered for recordation, a copy of the
original certified
by the applicable Mortgage Loan Seller to be a true and complete
copy of the
original thereof submitted for recording, shall be forwarded to the
Trustee.
Each assignment referred to in the second preceding paragraph
that
is recorded by the Trustee shall reflect that it should be returned
by the
public recording office to the Trustee or its agent following
recording, and
each UCC-2 and UCC-3 assignment referred to in the second preceding
paragraph
that is filed by the Trustee shall reflect that the file copy
thereof should be
returned to the Trustee or its agent following filing; provided
that, in those
instances where the public recording office retains the original
assignment of
Mortgage or assignment of Assignment of Leases, the Trustee shall
obtain
therefrom a certified copy of the recorded original. On a monthly
basis, at the
expense of the applicable Mortgage Loan Seller, the Trustee shall
forward to the
Master Servicer a copy of each of the aforementioned assignments
following the
Trustee's receipt thereof.
If any of the aforementioned assignments is lost or returned
unrecorded or unfiled, as the case may be, because of a defect
therein, then the
Trustee shall direct the applicable Mortgage Loan Seller (pursuant
to the
applicable Mortgage Loan Purchase Agreement) promptly to prepare or
cause the
preparation of a substitute therefor or to cure such defect, as the
case may be,
and to deliver to the Trustee the substitute or corrected document.
The Trustee
shall upon receipt from the applicable Mortgage Loan Seller cause
the same to be
duly recorded or filed, as appropriate.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct each Mortgage
Loan Seller
(pursuant to the applicable Mortgage Loan Purchase Agreement) to
deliver to and
deposit (or cause to be delivered and deposited) with the Master
Servicer within
10 Business Days after the Closing Date, documents and records that
(A) relate
to the servicing and administration of the Mortgage Loans, (B) are
reasonably
necessary for the ongoing administration and/or servicing of the
Mortgage Loans
under this Agreement (including any asset summaries related to the
Mortgage
Loans that were delivered to the Rating Agencies in connection with
the rating
of the Certificates) and (C) are in possession or under control of
the
applicable Mortgage Loan Seller, together with (i) all unapplied
Escrow Payments
and Reserve Funds in the possession of the applicable Mortgage Loan
Seller that
relate to such Mortgage Loans and (ii) a statement indicating which
Escrow
Payments and Reserve Funds are allocable to such Mortgage Loans,
provided that
the applicable Mortgage Loan Seller shall not be required to
deliver any draft
documents, privileged or other internal communications, credit
underwriting, due
diligence analyses or data, or internal worksheets, memoranda,
communications or
evaluations. The Master Servicer shall hold all such documents,
records and
funds on behalf of the Trustee in trust for the benefit of the
Certificateholders.
(e) It is not intended that this Agreement create a partnership or
a
joint-stock association.
Section 2.02 Acceptance of Trust Fund by Trustee.
(a) The Trustee,
by its execution and delivery of this Agreement,
hereby accepts receipt, directly or through a Custodian on its
behalf, of (i)
the Mortgage Loans and all documents delivered to it that
constitute portions of
the related Mortgage Files and (ii) all other assets delivered to
it and
included in the Trust Fund, in good faith and without notice of any
adverse
claim, and declares that it or a Custodian on its behalf holds and
will hold
such documents and any other documents subsequently received by it
that
constitute portions of the Mortgage Files, and that it holds and
will hold the
Mortgage Loans and such other assets, together with any other
assets
subsequently delivered to it that are to be included in the Trust
Fund, in trust
for the exclusive use and benefit of all present and future
Certificateholders.
In connection with the foregoing, the Trustee hereby certifies
to
each of the other parties hereto, each Mortgage Loan Seller and
each Underwriter
that, as to each Mortgage Loan, except as specifically identified
in the
Schedule of Exceptions to Mortgage File Delivery attached hereto as
Schedule II,
(i) all documents specified in clauses (a)(i), (ii), (vii), (ix),
(xi) and (xix)
of the definition of "Mortgage File" (but in the case of documents
specified in
clauses (ix) and (xix) only to the extent the Trustee or a
Custodian on its
behalf has actual knowledge of their existence) of the definition
of "Mortgage
File" are in its possession or the possession of a Custodian on its
behalf, and
(ii) the original Mortgage Note (or, if accompanied by a lost note
affidavit,
the copy of such Mortgage Note) received by it or any Custodian
with respect to
such Mortgage Loan has been reviewed by it or by such Custodian on
its behalf
and (A) appears regular on its face (handwritten additions, changes
or
corrections shall not constitute irregularities if initialed by the
Mortgagor),
(B) appears to have been executed (where appropriate) and (C)
purports to relate
to such Mortgage Loan.
(b) On or about the 45th day following the Closing Date (and, if
any
exceptions are noted, again on or about the 90th day following the
Closing Date
and monthly thereafter until the earliest of (i) the second
anniversary of the
Closing Date, (ii) the day on which all material exceptions have
been removed
and (iii) the day on which the Depositor has repurchased the last
affected
Mortgage Loan), the Trustee or a Custodian on its behalf shall
review the
documents delivered to it or such Custodian with respect to each
Mortgage Loan,
and the Trustee shall, subject to Sections 2.01, 2.02(c) and
2.02(d), certify in
writing (substantially in the form of Exhibit C hereto) to each of
the other
parties hereto, each Mortgage Loan Seller and each Underwriter
that, as to each
Mortgage Loan then subject to this Agreement (except as
specifically identified
in any exception report annexed to such certification): (i) all
documents
specified in clauses (a)(i) through (a)(v), (a)(vii) and, if
applicable,
(a)(viii) (without regard to the second parenthetical in such
clause (a)(viii))
of the definition of "Mortgage File") that are required to be
delivered
hereunder have been delivered; (ii) the recordation/filing
contemplated by
Section 2.01(c) has been completed (based solely on receipt by the
Trustee of
the particular recorded/filed documents); (iii) all documents
received by it or
any Custodian with respect to such Mortgage Loan have been reviewed
by it or by
such Custodian on its behalf and (A) appear regular on their face
(handwritten
additions, changes or corrections shall not constitute
irregularities if
initialed by the Mortgagor), (B) appear to have been executed
(where
appropriate) and (C) purport to relate to such Mortgage Loan; and
(iv) based on
the examinations referred to in Section 2.02(a) above and this
Section 2.02(b)
and only as to the foregoing documents, the information set forth
in the
Mortgage Loan Schedule with respect to the items specified in
clauses (v) and
(vi)(B) of the definition of "Mortgage Loan Schedule" accurately
reflects the
information set forth in the Mortgage File. With respect to the
items listed in
clauses (ii), (iii), (iv) and, if applicable, (vi) of the
definition of Mortgage
File if the original of such document is not in the Trustee's
possession because
it has not been returned from the applicable recording office, then
the
Trustee's or Custodian's certification prepared pursuant to this
Section 2.02(b)
should indicate the absence of such original. If the Trustee's
obligation to
deliver the certifications contemplated in this subsection
terminates because
two years have elapsed since the Closing Date, the Trustee shall
deliver a
comparable certification to any party hereto and any Underwriter on
request.
(c) None of the Trustee, the Master Servicer, the Special
Servicer
or any Custodian is under any duty or obligation to inspect, review
or examine
any of the documents, instruments, certificates or other papers
relating to the
Mortgage Loans delivered to it to determine that the same are
valid, legal,
effective, genuine, binding, enforceable, sufficient or appropriate
for the
represented purpose or that they are other than what they purport
to be on their
face. Furthermore, none of the Trustee, the Master Servicer, the
Special
Servicer or any Custodian shall have any responsibility for
determining whether
the text of any assignment or endorsement is in proper or
recordable form,
whether the requisite recording of any document is in accordance
with the
requirements of any applicable jurisdiction, or whether a blanket
assignment is
permitted in any applicable jurisdiction.
(d) It is understood that the scope of the Trustee's review of
the
Mortgage Files is limited solely to confirming that the documents
specified in
clauses (a)(i) through (a)(v), (a)(vii) and (a)(viii) of the
definition of
"Mortgage File" have been received and such additional information
as will be
necessary for delivering the certifications required by Sections
2.02(a) and (b)
above.
(e) If, after the Closing Date, the Depositor comes into
possession
of any documents or records that constitute part of the Mortgage
File or
Servicing File for any Mortgage Loan, the Depositor shall promptly
deliver such
document to the Trustee (with a copy to the Master Servicer) (if it
constitutes
part of the Mortgage File) or the Master Servicer (if it
constitutes part of the
Servicing File), as applicable.
Section 2.03 Repurchase of Mortgage Loans for Document Defects
and
Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document constituting
a
part of a Mortgage File has not been properly executed, is missing,
contains
information that does not conform in any material respect with the
corresponding
information set forth in the Mortgage Loan Schedule, or does not
appear to be
regular on its face (each, a "Document Defect"), or discovers or
receives notice
of a breach of any representation or warranty of a Mortgage Loan
Seller made
pursuant to Section 3(b) of the applicable Mortgage Loan Purchase
Agreement with
respect to any Mortgage Loan (a "Breach"), such party shall give
prompt written
notice thereof to each of the Rating Agencies, the applicable
Mortgage Loan
Seller and the other parties hereto. If any such Document Defect or
Breach with
respect to any Mortgage Loan materially and adversely affects the
interests of
the Certificateholders therein, then such Document Defect shall
constitute a
"Material Document Defect" or such Breach shall constitute a
"Material Breach,"
as the case may be. Promptly upon becoming aware of any such
Material Document
Defect or Material Breach (including through a written notice given
by any party
hereto, as provided above), the Trustee shall require the
applicable Mortgage
Loan Seller, not later than 90 days from the earlier of the
Mortgage Loan
Seller's discovery or receipt of notice of such Material Document
Defect or
Material Breach, as the case may be (or, in the case of a Material
Document
Defect or Material Breach relating to a Mortgage Loan not being a
"qualified
mortgage" within the meaning of the REMIC Provisions, not later
than 90 days of
any party discovering such Material Document Defect or Material
Breach), to cure
the same in all material respects (which cure shall include payment
of losses
and any Additional Trust Fund Expenses associated therewith) or
repurchase the
affected Mortgage Loan at the applicable Purchase Price by wire
transfer of
immediately available funds to the Custodial Account; provided,
however, that if
(i) such Material Document Defect or Material Breach is capable of
being cured
but not within the applicable 90-day period, (ii) such Material
Document Defect
or Material Breach is not related to any Mortgage Loan's not being
a "qualified
mortgage" within the meaning of the REMIC Provisions, (iii) the
applicable
Mortgage Loan Seller has commenced and is diligently proceeding
with the cure of
such Material Document Defect or Material Breach within such 90-day
period and
(iv) the affected Mortgage Loan is not then a Specially Serviced
Mortgage Loan,
then the applicable Mortgage Loan Seller shall have an additional
90 days to
complete such cure or, in the event of a failure to so cure, to
complete such
repurchase (it being understood and agreed that, in connection with
the
applicable Mortgage Loan Seller's receiving such additional 90-day
period, the
applicable Mortgage Loan Seller shall deliver an Officer's
Certificate to the
Trustee setting forth the reasons such Material Document Defect or
Material
Breach is not capable of being cured within the initial 90-day
period and what
actions the applicable Mortgage Loan Seller is pursuing in
connection with the
cure thereof and stating that the applicable Mortgage Loan Seller
anticipates
that such Material Document Defect or Material Breach will be cured
within such
additional 90-day period); and provided, further, that, if any such
Material
Document Defect is still not cured after the initial 90-day period
and any such
additional 90-day period solely due to the failure of the
applicable Mortgage
Loan Seller to have received the recorded document, then the
applicable Mortgage
Loan Seller shall be entitled to continue to defer its cure and
repurchase
obligations in respect of such Document Defect so long as the
applicable
Mortgage Loan Seller certifies to the Trustee every 30 days
thereafter that the
Document Defect is still in effect solely because of its failure to
have
received the recorded document and that the applicable Mortgage
Loan Seller is
diligently pursuing the cure of such defect (specifying the actions
being
taken), except that no such deferral of cure or repurchase may
continue beyond
the second anniversary of the Closing Date. Provided that the
Master Servicer
has notice of such Material Document Defect or Material Breach, the
Master
Servicer shall notify the Mortgage Loan Seller if the related
Mortgage Loan
becomes a Specially Serviced Mortgage Loan during any applicable
cure periods.
Any of the following document defects shall be conclusively
presumed to be a
Material Document Defect: (a) the absence from the Mortgage File of
the original
signed Mortgage Note, together with the endorsements referred to in
clause
(a)(i) of the definition of "Mortgage File," unless the Mortgage
File contains a
signed lost note affidavit and indemnity with respect to the
missing Mortgage
Note and any missing endorsements that appears to be regular on its
face, (b)
the absence from the Mortgage File of the original executed
Mortgage or a copy
of such Mortgage certified by the local authority with which the
Mortgage was
recorded, in each case with evidence of recording thereon, that
appears to be
regular on its face, unless there is included in the Mortgage File
a copy of the
executed Mortgage and a certificate stating that the original
signed Mortgage
was sent for recordation, (c) the absence from the Mortgage File of
the original
or a copy of the lender's title insurance policy, together with all
endorsements
or riders (or copies thereof) that were issued with or subsequent
to the
issuance of such policy, or marked up insurance binder or title
commitment which
is marked as a binding commitment and countersigned by title
company, insuring
the priority of the Mortgage as a first lien on the Mortgaged
Property, (d) the
absence from the Mortgage File of any intervening assignments
required to create
a complete chain of assignment to the Trustee on behalf of the
Trust and a
certificate stating that the original intervening assignments were
sent for
recordation, unless there is included in the Mortgage File a
certified copy of
the intervening assignment or (e) the absence from the Servicing
File of any
original letter of credit.
If one or more (but not all) of the Mortgage Loans constituting
a
Cross-Collateralized Group are to be repurchased by a Mortgage Loan
Seller as
contemplated by this Section 2.03(a), then, prior to the subject
repurchase, the
applicable Mortgage Loan Seller or its designee shall use its
reasonable
efforts, subject to the terms of the related Mortgage Loan(s), to
prepare and,
to the extent necessary and appropriate, have executed by the
related Mortgagor
and record, such documentation as may be necessary to terminate
the
cross-collateralization between the Mortgage Loan(s) in such
Cross-Collateralized Group that are to be repurchased, on the one
hand, and the
remaining Mortgage Loan(s) therein, on the other hand, such that
those two
groups of Mortgage Loans are each secured only by the Mortgaged
Properties
identified in the Mortgage Loan Schedule as directly corresponding
thereto;
provided that no such termination shall be effected unless and
until (i) the
Controlling Class Representative acting as the Directing Holder, if
one is then
acting, has consented (which consent shall not be unreasonably
withheld and
shall be deemed to have been given if no written objection is
received by the
applicable Mortgage Loan Seller within 10 Business Days of such
Directing
Holder's receipt of a written request for such consent), (ii) the
Trustee has
received from the applicable Mortgage Loan Seller (A) an Opinion of
Counsel to
the effect that such termination would not cause an Adverse REMIC
Event to occur
with respect to either REMIC Pool and (B) written confirmation from
each Rating
Agency that such termination would not cause an Adverse Rating
Event to occur
with respect to any Class of Certificates, (iii) the debt service
coverage ratio
for the four preceding calendar quarters for all of the Mortgage
Loans relating
to such Cross-Collateralized Group remaining is not less than 0.05x
below the
debt service coverage ratio for all Mortgage Loans of such
Cross-Collateralized
Group (including the affected Mortgage Loan) set forth in the
Prospectus
Supplement, (iv) the loan-to-value ratio for all of the Mortgage
Loans of such
Cross-Collateralized Group remaining is not greater than 5% more
than the
loan-to-value ratio for all Mortgage Loans of such
Cross-Collateralized Group
(including the affected Mortgage Loan) set forth in the Prospectus
Supplement;
and provided, further, that the applicable Mortgage Loan Seller
may, at its
option, purchase the entire subject Cross-Collateralized Group in
lieu of
effecting a termination of the cross-collateralization. All costs
and expenses
incurred by the Trustee or any Person on its behalf pursuant to
this paragraph
shall be included in the calculation of the Purchase Price for the
Mortgage
Loan(s) to be repurchased. If the cross-collateralization of
any
Cross-Collateralized Group is not or cannot be terminated as
contemplated by
this paragraph, then, for purposes of (i) determining whether any
Breach or
Document Defect, as the case may be, is a Material Breach or
Material Document
Defect, and (ii) the application of remedies, such
Cross-Collateralized Group
shall be treated as a single Mortgage Loan.
(b) In connection with any repurchase of a Mortgage Loan pursuant
to
this Section 2.03, and subject to Section 3.26, the Trustee, the
Custodian, the
Master Servicer and the Special Servicer shall each tender to the
repurchasing
entity, upon delivery to each of them of a receipt executed by the
repurchasing
entity, all portions (including, without limitation, the Servicing
File) of the
Mortgage File and other documents pertaining to such Mortgage Loan
possessed by
it, and each document that constitutes a part of the Mortgage File
shall be
endorsed or assigned to the extent necessary or appropriate to the
repurchasing
entity or its designee in the same manner, but only if the
respective documents
have been previously assigned or endorsed to the Trustee, and
pursuant to
appropriate forms of assignment, substantially similar to the
manner and forms
pursuant to which such documents were previously assigned to the
Trustee;
provided that such tender by the Trustee shall be conditioned upon
its receipt
from the Master Servicer of a Request for Release and an Officer's
Certificate
to the effect that the requirements for repurchase have been
satisfied. The
Master Servicer shall, and is hereby authorized and empowered by
the Trustee to,
prepare, execute and deliver in its own name, on behalf of the
Certificateholders and the Trustee or any of them, the endorsements
and
assignments contemplated by this Section 2.03(c), and such other
instruments as
may be necessary or appropriate to transfer title to an REO
Property in
connection with the repurchase of an REO Loan and the Trustee shall
execute and
deliver any powers of attorney necessary to permit the Master
Servicer to do so;
provided, however, that the Trustee shall not be held liable for
any misuse of
any such power of attorney by the Master Servicer.
(c) Notwithstanding the foregoing, if there exists a Breach of
that
portion of the representation or warranty on the part of a Mortgage
Loan Seller
set forth in, or made pursuant to, paragraph 23 or paragraph 43 of
Exhibit B to
the applicable Mortgage Loan Purchase Agreement, specifically
relating to
whether or not the Mortgage Loan documents or any particular
Mortgage Loan
document for any Mortgage Loan requires the related Mortgagor to
bear the cost
of Rating Agency fees reflected in paragraph 23 or reasonable costs
and expenses
associated with a defeasance, as set forth in paragraph 43 of
Exhibit B to the
Mortgage Loan Purchase Agreement (any such fees, costs or expenses,
referred to
in this subsection (d) as "Covered Costs"), then the Master
Servicer shall
direct the applicable Mortgage Loan Seller in writing to wire
transfer to the
Custodial Account, within 90 days of receipt of such direction, the
amount of
any such reasonable costs and expenses incurred by the Trust that
(i) otherwise
would have been required to be paid by the Mortgagor if such
representation or
warranty with respect to such costs and expenses had in fact been
true, as set
forth in the related representation or warranty, (ii) have not been
paid by the
Mortgagor, (iii) are the basis of such Breach and (iv) constitute
"Covered
Costs."
(d) Each Mortgage Loan Purchase Agreement and Section 2.03(a)
provide the sole remedies available to the Certificateholders, or
the Trustee on
behalf of the Certificateholders, respecting any Document Defect or
Breach with
respect to any Mortgage Loan.
Section 2.04 Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents, warrants and covenants to
the
Trustee, for its own benefit and the benefit of the
Certificateholders and to
the Master Servicer and the Special Servicer, as of the Closing
Date, that:
(i) The Depositor is a corporation duly organized, validly
existing
and in
good standing under the laws of the State of Delaware, and the
Depositor
has taken all necessary corporate action to authorize the
execution,
delivery and performance of this Agreement by it, and has the
power and
authority to execute, deliver and perform this Agreement and
all
the
transactions contemplated hereby, including, but not limited to,
the
power and
authority to sell, assign and transfer the Mortgage Loans in
accordance
with this Agreement;
(ii) Assuming the due authorization, execution and delivery of
this
Agreement
by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and
binding
obligations of the Depositor, enforceable against the Depositor
in
accordance
with the terms of this Agreement, except as such enforcement
may be
limited by bankruptcy, insolvency, reorganization or other
similar
laws
affecting the enforcement of creditors' rights generally, and
by
general
principles of equity (regardless of whether such enforceability
is
considered
in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its
obligations hereunder by the Depositor will not
conflict
with any provisions of any law or regulations to which the
Depositor
is subject, or conflict with, result in a breach of or
constitute
a default under any of the terms, conditions or provisions of
the
certificate of incorporation or the by-laws of the Depositor or
any
indenture,
agreement or instrument to which the Depositor is a party or by
which it
is bound, or any order or decree applicable to the Depositor,
or
result in
the creation or imposition of any lien on any of the
Depositor's
assets or
property, which would materially and adversely affect the
ability of
the Depositor to carry out the transactions contemplated by
this Agreement; the
Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or
body
required
for the execution, delivery and performance by the Depositor of
this
Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any
court or by
or before
any other governmental agency or instrumentality which would
materially
and adversely affect the validity of the Mortgage Loans or the
ability of
the Depositor to carry out the transactions contemplated by
this
Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans free
and
clear of
all liens, claims, encumbrances and other interests with the
full
right to
transfer the Mortgage Loans to the Trust and the Mortgage Loans
have been
validly transferred to the Trust.
The representations, warranties and covenants of the Depositor
set
forth in this Section 2.04 shall survive the execution and delivery
of this
Agreement and shall inure to the benefit of the Persons for whose
benefit they
were made for so long as the Trust Fund remains in existence. Upon
discovery by
any party hereto of any breach of any of such representations,
warranties and
covenants, the party discovering such breach shall give prompt
written notice
thereof to the other parties.
Section 2.05 Execution of Certificates; Issuance of
Uncertificated
Lower-Tier Interests.
The Trustee hereby acknowledges the assignment to it of the
Mortgage
Loans, and, subject to Sections 2.01 and 2.02, the delivery to it
or a Custodian
on its behalf of the Mortgage Files and a fully executed original
counterpart of
the Mortgage Loan Purchase Agreement, together with the assignment
to it of all
other assets included in the Trust Fund. Concurrently with such
assignment and
delivery and in exchange therefor, the Trustee (i) acknowledges the
issuance of
the Uncertificated Lower-Tier Interests to or upon the order of the
Depositor,
(ii) acknowledges and hereby declares that it holds the
Uncertificated
Lower-Tier Interests on behalf of the Upper-Tier REMIC and Holders
of the
Certificates (other than the Class R-I Certificates) and (iii)
acknowledges the
execution by the Certificate Registrar and the authentication and
delivery by
the Authenticating Agent of the Class R-I Certificates to or upon
the order of
the Depositor, in exchange for the Mortgage Loans, receipt of which
is hereby
acknowledged, and immediately thereafter, the Trustee acknowledges
that it has
caused the Certificate Registrar to execute and caused the
Authenticating Agent
to authenticate and to deliver to or upon the order of the
Depositor, in
exchange for the Uncertificated Lower-Tier Interests, the Regular
Interest
Certificates and the Class R-II Certificates, and the Depositor
hereby
acknowledges the receipt by it or its designees, of such
Certificates in
authorized denominations evidencing the entire beneficial ownership
of the
Upper-Tier REMIC.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Mortgage Loans.
(a) All of the Mortgage Loans and REO Properties are to be
serviced
and administered by the Master Servicer and/or the Special Servicer
hereunder.
Each of the Master Servicer and the Special Servicer shall service
and
administer the Mortgage Loans and REO Properties that it is
obligated to service
and administer pursuant to this Agreement on behalf of the Trustee,
for the
benefit of the Certificateholders, as determined in the good faith
and
reasonable judgment of the Master Servicer or the Special Servicer,
as the case
may be, in accordance with: (i) any and all applicable laws; (ii)
the express
terms of this Agreement and the respective Mortgage Loans; and
(iii) to the
extent consistent with the foregoing, the Servicing Standard. The
Master
Servicer or the Special Servicer, as applicable in accordance with
this
Agreement, shall service and administer each Cross-Collateralized
Group, if any,
as a single Mortgage Loan as and when necessary and appropriate
consistent with
the Servicing Standard. Without limiting the foregoing, and subject
to Section
3.22, (i) the Master Servicer shall service and administer all of
the Performing
Mortgage Loans and shall render such services with respect to the
Specially
Serviced Mortgage Loans as are specifically provided for herein,
and (ii) the
Special Servicer shall service and administer each Specially
Serviced Mortgage
Loan and REO Property and shall render such services with respect
to the
Performing Mortgage Loans as are specifically provided for herein.
All
references herein to the respective duties of the Master Servicer
and the
Special Servicer, and to the areas in which they may exercise
discretion, shall
be subject to Section 3.22.
(b) Subject to Section 3.01(a) and Section 6.11 (taking account
of
Section 6.11(b)), the Master Servicer and the Special Servicer
shall each have
full power and authority, acting alone or through sub-servicers, to
do or cause
to be done any and all things in connection with the servicing
and
administration contemplated by Section 3.01(a) that it may deem
necessary or
desirable. Without limiting the generality of the foregoing, each
of the Master
Servicer and the Special Servicer, in its own name, with respect to
each of the
Mortgage Loans it is obligated to service hereunder, is hereby
authorized and
empowered by the Trustee to execute and deliver, on behalf of
the
Certificateholders and the Trustee or any of them, (i) any and all
financing
statements, continuation statements and other documents or
instruments necessary
to maintain the lien created by any Mortgage or other security
document in the
related Mortgage File on the related Mortgaged Property and related
collateral;
(ii) in accordance with the Servicing Standard and subject to
Section 3.21 and
Section 6.11 (taking account of Section 6.11(b)), any and all
modifications,
extensions, waivers, amendments or consents to or with respect to
any documents
contained in the related Mortgage File; (iii) any and all
instruments of
satisfaction or cancellation, or of partial or full release or
discharge or of
assignment, and all other comparable instruments; and (iv) any and
all
instruments that such party may be required to execute on behalf of
the Trustee
in connection with the defeasance of a Mortgage Loan as
contemplated in this
Agreement. Subject to Section 3.10, the Trustee shall, at the
written request of
the Master Servicer or the Special Servicer, promptly execute any
limited powers
of attorney and other documents furnished by the Master Servicer or
the Special
Servicer that are necessary or appropriate to enable them to carry
out their
servicing and administrative duties hereunder; provided, however,
that the
Trustee shall not be held liable for any misuse of any such power
of attorney by
the Master Servicer or the Special Servicer. Notwithstanding
anything contained
herein to the contrary, neither the Master Servicer nor the Special
Servicer
shall, without the Trustee's written consent: (i) initiate any
action, suit or
proceeding solely under the Trustee's name without indicating the
Master
Servicer's or Special Servicer's, as applicable, representative
capacity; or
(ii) take any action with the intent to cause, and that actually
causes, the
Trustee to be registered to do business in any state.
(c) The relationship of each of the Master Servicer and the
Special
Servicer to the Trustee under this Agreement is intended by the
parties to be
that of an independent contractor and not that of a joint venturer,
partner or
agent.
Section 3.02 Collection of Loan Payments.
(a) Each
of the Master Servicer (with respect to Performing Mortgage
Loans) and the Special Servicer (with respect to Specially Serviced
Mortgage
Loans) shall undertake reasonable efforts to collect all payments
required under
the terms and provisions of the Mortgage Loans it is obligated to
service
hereunder and shall follow such collection procedures as are
consistent with the
Servicing Standard. The Special Servicer shall ensure that, with
respect to
Specially Serviced Mortgage Loans, the Mortgagors make payments
directly to the
Master Servicer; provided that, in the event the Special Servicer
receives a
payment that should have been made directly to the Master Servicer,
the Special
Servicer shall promptly forward such payment to the Master
Servicer. Upon
receipt of any such payment with respect to a Specially Serviced
Mortgage Loan,
the Master Servicer shall promptly notify the Special Servicer, and
the Special
Servicer shall direct the Master Servicer as to the proper posting
of such
payment. Consistent with the foregoing, the Special Servicer, with
regard to a
Specially Serviced Mortgage Loan, or the Master Servicer, with
regard to a
Performing Mortgage Loan, may waive or defer any Default Charges in
connection
with collecting any late payment on a Mortgage Loan; provided that
without the
consent of the Special Servicer in the case of a proposed waiver by
the Master
Servicer, no such waiver or deferral may be made by the Master
Servicer pursuant
to this Section 3.02 if any Advance has been made as to such
delinquent payment.
(b) [Reserved]
(c) All amounts Received with respect to any
Cross-Collateralized
Group in the form of payments from Mortgagors, Insurance Proceeds,
Condemnation
Proceeds and Liquidation Proceeds, shall be applied by the Master
Servicer among
the Mortgage Loans constituting such Cross-Collateralized Group in
accordance
with the express provisions of the related loan documents and, in
the absence of
such express provisions or to the extent that such payments and
other
collections may be applied at the discretion of the lender, on a
pro rata basis
in accordance with the respective amounts then "due and owing" as
to each such
Mortgage Loan. Amounts Received in respect of or allocable to any
particular
Mortgage Loan (whether or not such Mortgage Loan constitutes part
of a
Cross-Collateralized Group) in the form of payments from
Mortgagors, Liquidation
Proceeds, Condemnation Proceeds or Insurance Proceeds shall be
applied to
amounts due and owing under the related Mortgage Note and Mortgage
(including
for principal and accrued and unpaid interest) in accordance with
the express
provisions of the related Mortgage Note and Mortgage and, in the
absence of such
express provisions or to the extent that such payments and other
collections may
be applied at the discretion of the lender, as follows (without
duplication):
first, as a recovery of any related and unreimbursed Servicing
Advances
(together with interest thereon), and if applicable, unpaid
Liquidation
Expenses, in each case to the extent such application is permitted
under the
terms of the related Mortgage Loan documents; second, as a recovery
of any
Nonrecoverable Advance and Unliquidated Advance in respect of such
Mortgage Loan
and, in each case, interest thereon that was reimbursed from
general principal
collections on the Mortgage Pool, to the extent such application is
permitted
under the terms of the related Mortgage Loan documents; third, as a
recovery of
accrued and unpaid interest on, and principal of, such Mortgage
Loan to the
extent of any outstanding P&I Advances and unpaid Master
Servicing Fees in
respect of such Mortgage Loan; fourth, as a recovery of any
remaining accrued
and unpaid interest on such Mortgage Loan at the related Mortgage
Rate to, but
not including, the related Due Date; fifth, as a recovery of any
remaining
principal of such Mortgage Loan then due and owing, including by
reason of
acceleration of the Mortgage Loan following a default thereunder
(or, if a
Liquidation Event has occurred in respect of such Mortgage Loan, as
a recovery
of principal to the extent of its entire remaining unpaid principal
balance);
sixth, unless a Liquidation Event has occurred with respect to such
Mortgage
Loan, as a recovery of amounts to be currently applied to the
payment of, or
escrowed for the future payment of, real estate taxes, assessments,
insurance
premiums (including premiums on any Environmental Insurance
Policy), ground
rents (if applicable) and similar items; seventh, unless a
Liquidation Event has
occurred with respect to such Mortgage Loan, as a recovery of
Reserve Funds to
the extent then required to be held in escrow; eighth, as a
recovery of any
Prepayment Premium or Yield Maintenance Charge then due and owing
under such
Mortgage Loan; ninth, as a recovery of any Default Charges then due
and owing
under such Mortgage Loan; tenth, as a recovery of any assumption
fees,
modification fees and extension fees then due and owing under such
Mortgage
Loan; eleventh, as a recovery of any other amounts then due and
owing under such
Mortgage Loan; and, twelfth, as a recovery of any remaining
principal of such
Mortgage Loan to the extent of its entire remaining unpaid
principal balance.
Section 3.03 Collection of Taxes, Assessments and Similar
Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans,
establish
and maintain one or more accounts, in which all related Escrow
Payments shall be
deposited and retained (each a "Servicing Account"). Subject to the
terms of the
related Mortgage Loan documents, each Servicing Account shall be an
Eligible
Account. Withdrawals of amounts so collected from a Servicing
Account may be
made (to the extent of amounts on deposit therein in respect of the
related
Mortgage Loan or, in the case of clauses (iv) and (v) below, to the
extent of
interest or other income earned on such amounts) only for the
following
purposes: (i) consistent with the related Mortgage Loan documents,
to effect the
payment of real estate taxes, assessments, insurance premiums
(including
premiums on any Environmental Insurance Policy), ground rents (if
applicable)
and comparable items in respect of the respective Mortgaged
Properties; (ii)
insofar as the particular Escrow Payment represents a late payment
that was
intended to cover an item described in the immediately preceding
clause (i) for
which a Servicing Advance was made, to reimburse the Master
Servicer, the
Special Servicer or the Trustee, as applicable, for such Servicing
Advance;
(iii) to refund to Mortgagors any sums as may be determined to be
overages; (iv)
to pay interest, if required and as described below, to Mortgagors
on balances
in such Servicing Account; (v) to pay the Master Servicer interest
and
investment income on balances in such Servicing Account as
described in Section
3.06(b), if and to the extent not required by law or the terms of
the related
Loan documents to be paid to the Mortgagor; or (vi) to clear and
terminate such
Servicing Account at the termination of this Agreement in
accordance with
Section 9.01. To the extent permitted by law or the applicable
Mortgage Loan
documents, funds in the Servicing Accounts may be invested only in
Permitted
Investments in accordance with the provisions of Section 3.06. The
Master
Servicer shall pay or cause to be paid to the Mortgagors interest,
if any,
earned on the investment of funds in the related Servicing
Accounts, if required
by law or the terms of the related Mortgage Loan. If the Master
Servicer shall
deposit in a Servicing Account any amount not required to be
deposited therein,
it may at any time withdraw such amount from such Servicing
Account, any
provision herein to the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Mortgage
Loan,
(i) maintain accurate records with respect to the related Mortgaged
Property
reflecting the status of real estate taxes, assessments and other
similar items
that are or may become a lien thereon and the status of insurance
premiums and
any ground rents payable in respect thereof and (ii) use reasonable
efforts to
obtain, from time to time, all bills for (or otherwise confirm) the
payment of
such items (including renewal premiums) and, if the subject
Mortgage Loan
requires the related Mortgagor to escrow for such items, shall
effect payment
thereof prior to the applicable penalty or termination date. For
purposes of
effecting any such payment for which it is responsible, the Master
Servicer
shall apply Escrow Payments as allowed under the terms of the
related Mortgage
Loan (or, if such Mortgage Loan does not require the related
Mortgagor to escrow
for the payment of real estate taxes, assessments, insurance
premiums, ground
rents (if applicable) and similar items, the Master Servicer shall
use
reasonable efforts consistent with the Servicing Standard to cause
the related
Mortgagor to comply with the requirement of the related Mortgage
that the
Mortgagor make payments in respect of such items at the time they
first become
due and, in any event, prior to the institution of foreclosure or
similar
proceedings with respect to the related Mortgaged Property for
nonpayment of
such items). Subject to Section 3.12(d), the Master Servicer shall
timely make a
Servicing Advance to cover any such item which is not so paid,
including any
penalties or other charges arising from the Mortgagor's failure to
timely pay
such items.
(c) The Master Servicer shall, as to each and every Mortgage
Loan,
make a Servicing Advance with respect to the related Mortgaged
Property in an
amount equal to all such funds as are necessary for the purpose of
effecting the
payment of (i) real estate taxes, assessments and other similar
items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance
Policies
(including Environmental Insurance Policies), in each instance if
and to the
extent Escrow Payments (if any) collected from the related
Mortgagor are
insufficient to pay such item when due and the related Mortgagor
has failed to
pay such item on a timely basis. All such Servicing Advances shall
be
reimbursable in the first instance from related collections from
the Mortgagors,
and further as provided in Section 3.05(a). No costs incurred by
the Master
Servicer in effecting the payment of real estate taxes, assessments
and, if
applicable, ground rents on or in respect of the Mortgaged
Properties shall, for
purposes of this Agreement, including the Trustee's calculation of
monthly
distributions to Certificateholders, be added to the unpaid Stated
Principal
Balances of the related Mortgage Loans, notwithstanding that the
terms of such
Mortgage Loans so permit. The foregoing shall in no way limit the
Master
Servicer's ability to charge and collect from the Mortgagor such
costs together
with interest thereon.
(d) The Master Servicer shall, as to all Mortgage Loans,
establish
and maintain, as applicable, one or more accounts ("Reserve
Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained.
Withdrawals of
amounts so deposited may be made (i) for the specific purposes for
which the
particular Reserve Funds were delivered, in accordance with the
Servicing
Standard and the terms of the related Mortgage Note, Mortgage and
any other
agreement with the related Mortgagor governing such Reserve Funds,
and (ii) to
pay the Master Servicer interest and investment income earned on
amounts in the
Reserve Accounts as described below. To the extent permitted in the
applicable
Mortgage Loan documents, funds in the Reserve Accounts may be
invested in
Permitted Investments in accordance with the provisions of Section
3.06. Subject
to the related Mortgage Loan documents, all Reserve Accounts shall
be Eligible
Accounts. Consistent with the Servicing Standard, the Master
Servicer may waive
or extend the date set forth in any agreement governing Reserve
Funds by which
any required repairs, capital improvements and/or environmental
remediation at
the related Mortgaged Property must be completed; provided that any
waiver, any
extension for more than 120 days and any subsequent extension may
only be
granted with the consent of the Special Servicer.
Section 3.04 Custodial Account, Defeasance Deposit Account,
Distribution Account, Interest Reserve Account and Excess
Liquidation Proceeds
Account.
(a) The Master Servicer shall establish and maintain one or
more
separate accounts (collectively, the "Custodial Account"), in which
the amounts
described in clauses (i) through (ix) below shall be deposited and
held on
behalf of the Trustee in trust for the benefit of the
Certificateholders and the
Trustee as the Holder of the Uncertificated Lower-Tier Interests.
The Custodial
Account shall be an Eligible Account. The Master Servicer shall
deposit or cause
to be deposited in the Custodial Account, within one Business Day
of receipt (in
the case of payments by Mortgagors or other collections on the
Mortgage Loans)
or as otherwise required hereunder, the following payments and
collections
received or made by the Master Servicer or on its behalf subsequent
to the
Cut-off Date (other than in respect of principal and interest on
the Mortgage
Loans due and payable on or before the Cut-off Date, which amounts
shall be
delivered promptly to the Depositor or its designee, with
negotiable instruments
endorsed as necessary and appropriate without recourse, and other
than amounts
required to be deposited in the Defeasance Deposit Account), or
payments (other
than Principal Prepayments) received by it on or prior to the
Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal of the Mortgage Loans,
including
Principal Prepayments, and regardless of whether those payments
are made
by the related Mortgagor or any related guarantor, out of any
related
Reserve Funds maintained for such purpose, out of collections
on
any
related Defeasance Collateral or from any other source;
(ii) all payments on account of interest on the Mortgage Loans,
including
Default Interest, and regardless of whether those payments are
made by
the related Mortgagor or any related guarantor, out of any
related
Reserve
Funds maintained for such purpose, out of collections on any
related
Defeasance Collateral or from any other source;
(iii) all
Prepayment Premiums, Yield Maintenance Charges and late
payment
charges received in respect of any Mortgage Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and
Liquidation
Proceeds
received in respect of any Mortgage Loan (including any amounts
paid by a
Mortgagor or received as Insurance Proceeds, Condemnation
Proceeds
and Liquidation Proceeds that represent recoveries for an
Advance
(or
interest thereon) that was previously reimbursed to the party
that
made such
Advance as either a Nonrecoverable Advance or as a
Workout-Delayed Reimbursement Amount);
(v) any amounts required to be deposited by the Master Servicer
pursuant
to Section 3.06 in connection with losses incurred with respect
to
Permitted Investments of funds held in the Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer
or
the
Special Servicer pursuant to Section 3.07(b) in connection with
losses
resulting
from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO
Account
pursuant
to Section 3.17(c); and
(viii) insofar as they do not constitute Escrow Payments, any
amounts
paid by a Mortgagor specifically to cover items for which a
Servicing
Advance has been made.
The foregoing requirements for deposit in the Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments
from
Mortgagors in the nature of Escrow Payments, Reserve Funds,
assumption fees,
assumption application fees, funds representing a Mortgagor's
payment of costs
and expenses associated with assumptions and defeasance,
modification fees,
extension fees, charges for beneficiary statements or demands,
amounts collected
for checks returned for insufficient funds and any similar fees not
expressly
referred to in the prior paragraph need not be deposited by the
Master Servicer
in the Custodial Account. If the Master Servicer shall deposit in
the Custodial
Account any amount not required to be deposited therein, it may at
any time
withdraw such amount from the Custodial Account, any provision
herein to the
contrary notwithstanding. The Master Servicer shall promptly
deliver to the
Special Servicer, as additional special servicing compensation in
accordance
with Section 3.11(c), all assumption fees and assumption
application fees (or
the applicable portions thereof) and other transaction fees
received by the
Master Servicer to which the Special Servicer is entitled pursuant
to such
Section upon receipt of a written statement (on which the Master
Servicer is
entitled to rely) of a Servicing Officer of the Special Servicer
describing the
item and amount (unless pursuant to this Agreement it is otherwise
clear that
the Special Servicer is entitled to such amounts, in which case a
written
statement is not required). The Custodial Account shall be
maintained as a
segregated account, separate and apart from trust funds created
for
mortgage-backed securities of other series and the other accounts
of the Master
Servicer.
Upon receipt of any of the amounts described in clauses (i)
through
(iv) and (vi) through (viii) above with respect to any Mortgage
Loan, the
Special Servicer shall promptly, but in no event later than two
Business Days
after receipt, remit such amounts to the Master Servicer for
deposit into the
Custodial Account in accordance with the second preceding
paragraph, unless the
Special Servicer determines, consistent with the Servicing
Standard, that a
particular item should not be deposited because of a restrictive
endorsement or
other appropriate reason. With respect to any such amounts paid by
check to the
order of the Special Servicer, the Special Servicer shall endorse
such check to
the order of the Master Servicer, unless the Special Servicer
determines,
consistent with the Servicing Standard, that a particular item
cannot be so
endorsed and delivered because of a restrictive endorsement or
other appropriate
reason. Any such amounts received by the Special Servicer with
respect to an REO
Property shall be deposited by the Special Servicer into the REO
Account and
thereafter remitted to the Master Servicer for deposit into the
Custodial
Account as and to the extent provided in Section 3.17(c).
If and when any Mortgagor under a Defeasance Loan that is a
Mortgage
Loan elects to defease all or any part of its Mortgage Loan and,
pursuant to the
provisions of the related Mortgage Loan documents, delivers cash to
the Master
Servicer to purchase the required Defeasance Collateral, the Master
Servicer
shall establish and maintain one or more separate segregated
accounts
(collectively, the "Defeasance Deposit Account"), in which the
Master Servicer
shall deposit such cash within one Business Day of receipt by the
Master
Servicer. The Master Servicer shall retain such cash in the
Defeasance Deposit
Account pending its prompt application to purchase Defeasance
Collateral. The
Master Servicer shall hold such cash and maintain the Defeasance
Deposit Account
on behalf of the Mortgagor, as beneficial owner of the Defeasance
Collateral,
and the Trustee to secure payment on the related Defeasance Loan.
The Defeasance
Deposit Account shall be an Eligible Account. To the extent
permitted by law or
the applicable Defeasance Loan, prior to the purchase of Defeasance
Collateral,
funds in the Defeasance Deposit Account may be invested only in
Permitted
Investments in accordance with the provisions of Section 3.06. The
Master
Servicer shall pay or cause to be paid to the related Mortgagor(s)
interest, if
any, earned on the investment of funds in the Defeasance Deposit
Account, if
required by law or the terms of the related Mortgage Loan(s).
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in
trust for the
benefit of the Certificateholders. Each account that constitutes
the
Distribution Account shall be an Eligible Account. The Distribution
Account
shall be deemed to consist of three separate sub-accounts, which
shall be
established and maintained on a book-entry basis: the Lower-Tier
Distribution
Account, the Upper-Tier Distribution Account and the Interest
Reserve Account.
The Master Servicer shall deliver to the Trustee each month on or
before the
Master Servicer Remittance Date, for deposit in the Lower-Tier
Distribution
Account, an aggregate amount of immediately available funds equal
to the Master
Servicer Remittance Amount for such Master Servicer Remittance
Date, together
with, in the case of the final Distribution Date, any additional
amounts
contemplated by the second paragraph of Section 9.01.
Notwithstanding anything herein to the contrary, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account and the
Interest
Reserve Account may be maintained as part of a single Distribution
Account.
Amounts actually deposited into or distributed from the
Distribution Account
will be deemed to be deposited or distributed from the Lower-Tier
Distribution
Account, the Upper-Tier Distribution Account or the Interest
Reserve Account, as
applicable.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit
in the
Lower-Tier Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer
in
accordance
with Section 4.03(a); and
(ii) any amounts required to be deposited by the Master
Servicer
pursuant
to Section 3.20(a) in connection with Prepayment Interest
Shortfalls.
The Trustee shall, upon receipt, deposit in the Lower-Tier
Distribution Account, any and all amounts received by the Trustee
that are
required by the terms of this Agreement to be deposited
therein.
Promptly on each Distribution Date, the Trustee shall be deemed
to
withdraw from the Lower-Tier Distribution Account and deposit in
the Upper-Tier
Distribution Account an aggregate amount of immediately available
funds equal to
the Lower-Tier Distribution Amount and the amount of any Net
Prepayment
Consideration for such Distribution Date allocated in payment of
the
Uncertificated Lower-Tier Interests as specified in Sections
4.01(i) and
4.01(j), respectively.
In the event that the Master Servicer fails, on any Master
Servicer
Remittance Date, to remit to the Trustee any amount(s) required to
be so
remitted to the Trustee hereunder by such date, the Master Servicer
shall pay
the Trustee, for the account of the Trustee, interest, calculated
at the Prime
Rate, on such amount(s) not timely remitted, from and including
that Master
Servicer Remittance Date, to but not including the date such
payment was made.
On the Master Servicer Remittance Date in March of each year
(commencing in March [_________]), the Trustee shall transfer from
the Interest
Reserve Account to the Lower-Tier Distribution Account all Interest
Reserve
Amounts then on deposit in the Interest Reserve Account with
respect to the
Interest Reserve Mortgage Loans and any Interest Reserve REO
Mortgage Loans.
As and when required pursuant to Section 3.04(d), the Trustee
shall
transfer monies from the Excess Liquidation Proceeds Account to the
Lower-Tier
Distribution Account.
(c) The Trustee shall establish and maintain one or more
accounts
(collectively, the "Interest Reserve Account"), which may be a
sub-account of
the Distribution Account, to be held in trust for the benefit of
the
Certificateholders and the Trust as Holder of the Uncertificated
Lower-Tier
Interests. Each account that constitutes the Interest Reserve
Account shall be
an Eligible Account. On each Distribution Date in February and,
during a year
that is not a leap year, in January, prior to any distributions
being made in
respect of the Certificates on such Distribution Date, the Trustee
shall
withdraw from the Lower-Tier Distribution Account and deposit in
the Interest
Reserve Account with respect to each Interest Reserve Mortgage Loan
and Interest
Reserve REO Mortgage Loan, an amount equal to the Interest Reserve
Amount, if
any, in respect of such Mortgage Loan or REO Mortgage Loan, as the
case may be,
for such Distribution Date.
Notwithstanding that the Interest Reserve Account, the
Lower-Tier
Distribution Account and the Upper-Tier Distribution Account may be
sub-accounts
of the Distribution Account for reasons of administrative
convenience, the
Interest Reserve Account, the Lower-Tier Distribution Account and
the Upper-Tier
Distribution Account shall, for all purposes of this Agreement
(including the
obligations and responsibilities of the Trustee hereunder), be
considered to be
and shall be required to be treated as, separate and distinct
accounts. The
Trustee shall indemnify and hold harmless the Trust Fund against
any losses
arising out of the failure by the Trustee to perform its duties and
obligations
hereunder as if such accounts were separate. The provisions of this
paragraph
shall survive any resignation or removal of the Trustee and
appointment of a
successor trustee.
(d) If any Excess Liquidation Proceeds are received on the
Mortgage
Pool, the Trustee shall establish and maintain one or more
accounts
(collectively, the "Excess Liquidation Proceeds Account") to be
held in trust
for the benefit of the Certificateholders. Each account that
constitutes the
Excess Liquidation Proceeds Account shall be an Eligible Account.
On each Master
Servicer Remittance Date, the Master Servicer shall withdraw from
the Custodial
Account and remit to the Trustee for deposit in the Excess
Liquidation Proceeds
Account all Excess Liquidation Proceeds received during the
Collection Period
ending on the Determination Date immediately prior to such Master
Servicer
Remittance Date.
(e) Funds in the Custodial Account may be invested only in
Permitted
Investments in accordance with the provisions of Section 3.06.
Funds in the
Distribution Account (and all subaccounts thereof) and the Excess
Liquidation
Proceeds Account shall remain uninvested. The Master Servicer shall
give notice
to the Trustee, the Special Servicer and the Rating Agencies of the
location of
the Custodial Account as of the Closing Date and of the new
location of the
Custodial Account within two Business Days of any change thereof.
As of the
Closing Date, the Distribution Account (and all subaccounts
thereof) and, when
established, the Excess Liquidation Proceeds Account shall be
located at the
Trustee's offices in [______],[_____]. The Trustee shall give
notice to the
Master Servicer, the Special Servicer and the Rating Agencies of
any change in
the location of the Distribution Account (and all subaccounts
thereof), the
Interest Reserve Account or the Excess Liquidation Proceeds Account
prior to any
change thereof.
Section 3.05 Permitted Withdrawals From the Custodial Account,
the
Distribution Account, the Interest Reserve Account and the Excess
Liquidation
Proceeds Account.
(a) The Master Servicer may, from time to time, make
withdrawals
from the Custodial Account for any of the following purposes (the
order set
forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Trustee for deposit in the Distribution
Account
the
amounts required to be so deposited pursuant to the first paragraph
of
Section
3.04(b), and any amounts that may be applied to make P&I
Advances
pursuant
to Section 4.03(a);
(ii) to reimburse the Trustee and itself, in that order, for
unreimbursed P&I Advances made thereby with respect to the
Mortgage Pool,
the
Trustee's and Master Servicer's, as the case may be, respective
rights
to
reimbursement pursuant to this clause (ii) with respect to any such
P&I
Advance
being limited to amounts on deposit in the Custodial Account
that
represent
Late Collections of interest and principal (net of the related
Master
Servicing Fees and any related Workout Fees or Liquidation
Fees)
received
in respect of the particular Mortgage Loan or REO Mortgage Loan
as to
which such P&I Advance was made; provided, however, that if any
P&I
Advance
that was made with respect to the Mortgage Pool becomes a
Workout-Delayed Reimbursement Amount, then such P&I Advance
shall
thereafter
be reimbursed from the portion of general collections and
recoveries
on or in respect of all of the Mortgage Loans and REO
Properties
on deposit in the Custodial Account from time to time that
represent
collections or recoveries of principal to the extent provided
in
clause
(vii) below until such Advance becomes a Nonrecoverable
Advance;
(iii) to pay (A) to itself earned and unpaid Master Servicing
Fees
