EXECUTION VERSION
CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
Depositor
WACHOVIA BANK, NATIONAL ASSOCIATION
Master Servicer
ALLIED CAPITAL CORPORATION
Special Servicer
LASALLE BANK NATIONAL ASSOCIATION
Trustee
and
ABN AMRO BANK N.V.
Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2005
$1,450,972,920
Commercial Mortgage Pass-Through Certificates
Series 2005-C3
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01
Defined Terms..................................................6
SECTION 1.02
General Interpretive Principles...............................83
SECTION 1.03
Calculation of LIBOR..........................................84
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01
Conveyance of Mortgage Loans..................................85
SECTION 2.02
Acceptance of the Trust Fund by Trustee.......................88
SECTION 2.03
Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of
Representations and Warranties................................91
SECTION 2.04
Representations and Warranties of Depositor...................94
SECTION 2.05
Conveyance of Mortgage Loans, Loan REMIC Regular Interests
and REMIC I Regular Interests; Acceptance of Loan REMIC,
REMIC I, REMIC II and Grantor Trusts by Trustee...............96
SECTION 2.06
Issuance of Loan REMIC Interests and REMIC I Interests........97
SECTION 2.07
Execution, Authentication and Delivery of REMIC II
Certificates..................................................97
SECTION 2.08
Execution, Authentication and Delivery of Class Y and
Class A-MFL Certificates......................................98
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01
Administration of the Serviced Loans..........................98
SECTION 3.02
Collection of Mortgage Loan Payments.........................100
SECTION 3.03
Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.........................102
SECTION 3.04
Certificate Account, Interest Reserve Account,
Gain-on-Sale Reserve Account, Additional Interest Account,
Floating Rate Account, Distribution Account and
A/B Custodial Accounts.......................................106
SECTION 3.05
Permitted Withdrawals from the Certificate Account,
Interest Reserve Account, Additional Interest Account,
Floating Rate Account, Distribution Account and
A/B Custodial Accounts.......................................114
SECTION 3.06
Investment of Funds in the Servicing Accounts, Reserve
Accounts, Certificate Account, Interest Reserve Account,
Distribution Account,
i
Floating Rate Account, A/B Custodial Accounts,
Gain-on-Sale Reserve Account, Additional Interest Account,
and REO Accounts.............................................127
SECTION 3.07
Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage........................................130
SECTION 3.08
Enforcement of Alienation Clauses............................134
SECTION 3.09
Realization Upon Defaulted Mortgage Loans; Required
Appraisals...................................................136
SECTION 3.10
Trustee and Custodian to Cooperate; Release of
Mortgage Files...............................................140
SECTION 3.11
Servicing Compensation.......................................141
SECTION 3.12
Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports..................................146
SECTION 3.13
Annual Statement as to Compliance............................150
SECTION 3.14
Reports by Independent Public Accountants....................150
SECTION 3.15
Access to Certain Information................................151
SECTION 3.16
Title to REO Property; REO Accounts..........................154
SECTION 3.17
Management of REO Property...................................156
SECTION 3.18
Resolution of Defaulted Mortgage Loans and REO Properties....159
SECTION 3.19
Additional Obligations of Master Servicer and
Special Servicer.............................................163
SECTION 3.20
Modifications, Waivers, Amendments and Consents..............164
SECTION 3.21
Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.............................171
SECTION 3.22
Sub-Servicing Agreements.....................................175
SECTION 3.23
Representations and Warranties of Master Servicer and
Special Servicer.............................................177
SECTION 3.24
Sub-Servicing Agreement Representation and Warranty..........181
SECTION 3.25
Designation of Controlling Class Representative and
Class CP Representative......................................181
SECTION 3.26
Servicing of and Certain Matters Regarding an
A/B Loan Combination.........................................184
SECTION 3.27
The Swap Agreement...........................................187
SECTION 3.28
Controlling Class Representative Contact with Servicer.......189
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01
Distributions................................................190
SECTION 4.02
Statements to Certificateholders; CMSA Loan Periodic
Update File..................................................209
SECTION 4.03
P&I
Advances.................................................215
SECTION 4.04
Allocation of Realized Losses and Additional Trust Fund
Expenses; Allocation of Mortgage Deferred Interest;
Allocation of Appraisal Reduction Amounts; and Allocation
of Prepayment Interest Shortfalls............................218
SECTION 4.05
Calculations.................................................223
SECTION 4.06
Use of Agents................................................223
ii
ARTICLE V
THE CERTIFICATES
SECTION 5.01
The Certificates.............................................224
SECTION 5.02
Registration of Transfer and Exchange of Certificates........224
SECTION 5.03
Book-Entry Certificates......................................233
SECTION 5.04
Mutilated, Destroyed, Lost or Stolen Certificates............234
SECTION 5.05
Persons Deemed Owners........................................235
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND
THE CONTROLLING CLASS REPRESENTATIVE
SECTION 6.01
Liability of Depositor, Master Servicer and Special
Servicer.....................................................236
SECTION 6.02
Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer..........................236
SECTION 6.03
Limitation on Liability of Depositor, Master Servicer
and Special Servicer.........................................237
SECTION 6.04
Resignation of Master Servicer and the Special Servicer......238
SECTION 6.05
Rights of Depositor and Trustee in Respect of Master
Servicer and the Special Servicer............................239
SECTION 6.06
Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.......................................239
SECTION 6.07
Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.........................................239
SECTION 6.08
Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer........................................239
SECTION 6.09
Designation of Special Servicer by the Controlling Class
Certificateholders; Designation of Carolina Place Special
Servicer by Carolina Place Controlling B-Noteholder or
Class CP Majority Certificateholder..........................240
SECTION 6.10
Master Servicer or Special Servicer as Owner of a
Certificate..................................................244
SECTION 6.11
The Controlling Class Representative.........................244
SECTION 6.12
Certain Matters Regarding the Carolina Place Loan
Combination..................................................247
ARTICLE VII
DEFAULT
SECTION 7.01
Events of Default............................................252
SECTION 7.02
Trustee to Act; Appointment of Successor.....................257
SECTION 7.03
Notification to Certificateholders and Others................258
SECTION 7.04
Waiver of Events of Default..................................258
iii
SECTION 7.05
Additional Remedies of Trustee Upon Event of Default.........259
ARTICLE VIII
THE TRUSTEE AND THE FISCAL AGENT
SECTION 8.01
Duties of Trustee............................................260
SECTION 8.02
Certain Matters Affecting Trustee............................261
SECTION 8.03
Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans................263
SECTION 8.04
Trustee and Fiscal Agent May Own Certificates................263
SECTION 8.05
Fees and Expenses of Trustee; Indemnification of Trustee.....263
SECTION 8.06
Eligibility Requirements for Trustee.........................264
SECTION 8.07
Resignation and Removal of Trustee...........................265
SECTION 8.08
Successor Trustee............................................266
SECTION 8.09
Merger or Consolidation of Trustee and Fiscal Agent..........267
SECTION 8.10
Appointment of Co-Trustee or Separate Trustee................267
SECTION 8.11
Appointment of Custodians....................................268
SECTION 8.12
Appointment of Authenticating Agents.........................269
SECTION 8.13
Access to Certain Information................................270
SECTION 8.14
Appointment of Tax Administrators............................270
SECTION 8.15
Representations, Warranties and Covenants of Trustee.........271
SECTION 8.16
Reports to the Securities and Exchange Commission............272
SECTION 8.17
The Fiscal Agent.............................................275
SECTION 8.18
Representations and Warranties of Fiscal Agent...............277
ARTICLE IX
TERMINATION
SECTION 9.01
Termination Upon Repurchase or Liquidation of All
Mortgage Loans...............................................279
SECTION 9.02
Additional Termination Requirements..........................282
ARTICLE X
ADDITIONAL TAX PROVISIONS
SECTION 10.01
REMIC Administration.........................................284
SECTION 10.02
Grantor Trust Administration.................................288
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01
Amendment....................................................290
iv
SECTION 11.02
Recordation of Agreement; Counterparts.......................292
SECTION 11.03
Limitation on Rights of Certificateholders...................293
SECTION 11.04
Governing Law................................................293
SECTION 11.05
Notices......................................................294
SECTION 11.06
Severability of Provisions...................................294
SECTION 11.07
Grant of a Security Interest.................................295
SECTION 11.08
Streit Act...................................................295
SECTION 11.09
Successors and Assigns; Beneficiaries........................295
SECTION 11.10
Article and Section Headings.................................295
SECTION 11.11
Notices to Rating Agencies...................................296
SECTION 11.12
Complete Agreement...........................................297
v
SCHEDULES AND EXHIBITS
Schedule No.
Schedule Description
Schedule I
Mortgage Loan Schedule
Schedule II
Schedule of Exceptions to Mortgage File Delivery
Schedule III
Mortgage Loans as to Which the Related Mortgaged Property is
Covered by a Secured Creditor Environmental Insurance Policy
Schedule IV
Schedule of Reference Rates
Schedule V
Class A-SB Planned Principal Balance
Exhibit No.
Exhibit Description
-----------
-------------------
A-1
Form of Class A-1, A-2, A-3, A-SB, A-4, A-1A, A-MFL and A-M
Certificates
A-2
Form of Class XC and XP Certificates
A-3
Form of Class A-J, B, C and D Certificate
A-4
Form of Class E, F, G and H Certificates
A-5
Form of Class J, K, L, M, N, O, P, CP-1, CP-2 and CP-3
Certificates
A-6
Form of Class R Certificate
A-7
Form of Class Y Certificates
B
[RESERVED]
C
Form of Custodial Certification
D-1
Form of Master Servicer Request for Release
D-2
Form of Special Servicer Request for Release
E
Calculation of Net Cash Flow
F
Form of Distribution Date Statement
G-1
Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
G-2
Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
G-3
Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
G-4
Form of Transferee Certificate for Transfers of Interests in Rule
144A Global Certificates
G-5
Form of Transferee Certificate for Transfers of Interests in
Regulation S Global Certificates
H-1
Form I of Transferee Certificate in Connection with ERISA
(Definitive Non-Registered Certificates)
H-2
Form II of Transferee Certificate in Connection with ERISA
(Book-Entry Non-Registered Certificates)
I-1
Form of Transfer Affidavit and Agreement regarding Class R
Certificates
I-2
Form of Transferor Certificate regarding Class R Certificates
J-1
Form of Notice and Acknowledgment
J-2
Form of Acknowledgment of Proposed Special Servicer
K
[RESERVED]
L-1
Form of Information Request/Investor Certification for Website
Access from
vi
Certificate [Holder] [Owner]
L-2
Form of Information Request/Investor Certification for Website
Access from Prospective Investor
M
Form of Purchase Option Notice
N
Form of Defeasance Certification
O
Form of Depositor Certification
P
Form of Trustee Certification
Q-1
Form of Master Servicer Certification
Q-2
Form of Special Servicer Certification
vii
This Pooling and Servicing Agreement (this "Agreement") is dated
and
effective as of June 1, 2005, among CITIGROUP COMMERCIAL MORTGAGE
SECURITIES
INC., as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master
Servicer,
ALLIED CAPITAL CORPORATION, as Special Servicer, LASALLE BANK
NATIONAL
ASSOCIATION, as Trustee, and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT
The Depositor intends to sell the Certificates, which are to be
issued
hereunder in multiple Classes and which in the aggregate will
evidence the
entire beneficial ownership interest in the Trust Fund.
As provided herein, the Trustee will elect to treat the Carolina
Place
Mortgage Loan as the primary asset of a separate REMIC for federal
income tax
purposes, and such REMIC will be designated as the "Loan REMIC".
The Class R
Certificates will represent, among other things, the sole class of
"residual
interests" in the Loan REMIC for purposes of the REMIC Provisions
under federal
income tax law. Two separate Loan REMIC Regular Interests,
constituting
beneficial ownership interests in the Loan REMIC, will be issued on
the Closing
Date, and such Loan REMIC Regular Interests shall be designated as
"Loan REMIC
Regular Interest CP-I" and "Loan REMIC Regular Interest CP-II",
respectively.
Each Loan REMIC Regular Interest will relate to the Carolina Place
Mortgage Loan
and any successor REO Mortgage Loan with respect thereto. Each Loan
REMIC
Regular Interest will (i) accrue interest at the related per annum
rate
described in the definition of "Loan REMIC Remittance Rate" and
(ii) have an
initial Loan REMIC Principal Balance equal to: (A) $114,200,000 in
the case of
Loan REMIC Regular Interest CP-I; and (B) $15,800,000 in the case
of Loan REMIC
Regular Interest CP-II. None of the Loan REMIC Regular Interests
will be
certificated.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans (other than the
Carolina Place
Mortgage Loan and exclusive of any collections of Additional
Interest on any
such Mortgage Loans that constitute ARD Mortgage Loans after their
respective
Anticipated Repayment Dates), the Loan REMIC Regular Interests and
certain other
related assets subject to this Agreement as a REMIC for federal
income tax
purposes, and such segregated pool of assets will be designated as
"REMIC I".
The Class R Certificates will represent, among other things, the
sole class of
"residual interests" in REMIC I for purposes of the REMIC
Provisions under
federal income tax law. The following table sets forth the
designation, the
REMIC I Remittance Rate and the initial REMIC I Principal Balance
for each of
the REMIC I Regular Interests. None of the REMIC I Regular
Interests will be
certificated.
REMIC I
Initial REMIC I
Designation
Remittance Rate
Principal Balance
-----------
---------------
-----------------
A-1-1
Variable (1)
$
3,985,000
A-1-2
Variable (1)
$
5,291,000
A-1-3
Variable (1)
$ 23,185,000
A-1-4
Variable (1)
$ 26,963,000
A-1-5
Variable (1)
$ 16,387,000
A-2-1
Variable (1)
$ 10,137,000
A-2-2
Variable (1)
$ 29,744,000
A-2-3
Variable (1)
$ 26,046,000
A-2-4
Variable (1)
$ 25,866,000
A-2-5
Variable (1)
$ 72,356,000
A-3-1
Variable (1)
$ 42,317,000
A-3-2
Variable (1)
$ 10,550,000
A-SB-1
Variable (1)
$ 56,778,000
A-SB-2
Variable (1)
$ 28,591,000
A-SB-3
Variable (1)
$
7,576,000
A-4-1
Variable (1)
$ 11,412,000
A-4-2
Variable (1)
$ 46,585,000
A-4-3
Variable (1)
$ 28,907,000
A-4-4
Variable (1)
$ 16,232,000
A-4-5
Variable (1)
$225,989,000
A-1A-1
Variable (1)
$
609,000
A-1A-2
Variable (1)
$
790,000
A-1A-3
Variable (1)
$
5,459,000
A-1A-4
Variable (1)
$
6,541,000
A-1A-5
Variable (1)
$
6,357,000
A-1A-6
Variable (1)
$
6,301,000
A-1A-7
Variable (1)
$
6,181,000
A-1A-8
Variable (1)
$ 74,801,000
A-1A-9
Variable (1)
$
4,536,000
A-1A-10
Variable (1)
$ 32,796,000
A-1A-11
Variable (1)
$
3,395,000
A-1A-12
Variable (1)
$
3,359,000
A-1A-13
Variable (1)
$
9,025,000
A-1A-14
Variable (1)
$ 19,675,000
A-1A-15
Variable (1)
$
2,409,000
A-1A-16
Variable (1)
$107,490,000
A-MFL
Variable (1)
$ 50,000,000
A-M
Variable (1)
$ 93,517,000
A-J
Variable (1)
$102,256,000
B
Variable (1)
$ 30,497,000
C
Variable (1)
$ 16,146,000
D-1
Variable (1)
$
3,716,000
D-2
Variable (1)
$
6,570,000
D-3
Variable (1)
$ 11,242,000
E-1
Variable (1)
$
6,798,000
E-2
Variable (1)
$
7,744,000
E-3
Variable (1)
$
3,397,000
F
Variable (1)
$ 19,734,000
G
Variable (1)
$ 14,352,000
H
Variable (1)
$ 12,557,000
J
Variable (1)
$
5,382,000
2
K
Variable (1)
$
7,176,000
L
Variable (1)
$
5,382,000
M
Variable (1)
$
5,382,000
N
Variable (1)
$
3,588,000
O
Variable (1)
$
2,870,000
P
Variable (1)
$ 22,245,920
CP-1
Variable (2)
$
2,760,000
CP-2
Variable (2)
$
6,440,000
CP-3
Variable (2)
$
6,600,000
----------
(1)
The REMIC I Remittance Rate in effect for any REMIC I Regular
Interest
(other than REMIC I Regular Interest CP-1, REMIC I Regular Interest
CP-2
and REMIC I Regular Interest CP-3) for any Distribution Date shall
equal
the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution
Date.
(2)
The REMIC I Remittance Rate in effect for each of REMIC I Regular
Interest
CP-1, REMIC I Regular Interest CP-2 and REMIC I Regular Interest
CP-3 for
any Distribution Date shall equal the Net Mortgage Pass-Through
Rate for
the Carolina Place Mortgage Loan (or any successor REO Mortgage
Loan with
respect thereto) for such Distribution Date.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the REMIC I Regular Interests as a
REMIC for
federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC II". The Class R Certificates will represent,
among other
things, the sole class of "residual interests" in REMIC II for
purposes of the
REMIC Provisions under federal income tax law. The following table
irrevocably
sets forth the Class designation, Pass-Through Rate and original
Class Principal
Balance for each Class of the Regular Certificates and the Class
A-MFL REMIC II
Regular Interest. For federal income tax purposes, each Class of
the Regular
Certificates (exclusive of the Class X Certificates), each Class XC
Component,
each Class XP Component and the Class A-MFL REMIC II Regular
Interest will be
designated as a separate "regular interest" in REMIC II.
3
Class
Original Class
Designation
Pass-Through Rate
Principal Balance
-----------
-----------------
-----------------
Class A-1
4.3910% per annum
$ 75,811,000
Class A-2
4.6390% per annum
$164,149,000
Class A-3
4.7380% per annum
$ 52,867,000
Class A-SB
4.7550% per annum
$ 92,945,000
Class A-4
4.8600% per annum
$329,125,000
Class A-1A
4.7710% per annum
$289,724,000
Class A-MFL(3)
Variable (1)
$ 50,000,000
Class A-M
Variable (1)
$ 93,517,000
Class A-J
Variable (1)
$102,256,000
Class B
Variable (1)
$ 30,497,000
Class C
Variable (1)
$ 16,146,000
Class D
Variable (1)
$ 21,528,000
Class E
Variable (1)
$ 17,939,000
Class F
Variable (1)
$ 19,734,000
Class G
Variable (1)
$ 14,352,000
Class H
Variable (1)
$ 12,557,000
Class J
Variable (1)
$
5,382,000
Class K
Variable (1)
$
7,176,000
Class L
Variable (1)
$
5,382,000
Class M
Variable (1)
$
5,382,000
Class N
Variable (1)
$
3,588,000
Class O
Variable (1)
$
2,870,000
Class P
Variable (1)
$22,245,920
Class XC
Variable (1)
(2)
Class XP
Variable (1)
(2)
Class CP-1
Variable (1)
$
2,760,000
Class CP-2
Variable (1)
$
6,440,000
Class CP-3
Variable (1)
$
6,600,000
----------
(1)
The respective Pass-Through Rates for the Class A-M, Class A-J,
Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K,
Class L, Class M, Class N, Class O, Class P, Class CP-1, Class
CP-2, Class
CP-3, Class XC and Class XP Certificates will, in the case of each
of those
Classes, be a variable rate per annum calculated in accordance with
the
definition of "Pass-Through Rate". The Pass-Through Rate for the
Class
A-MFL REMIC II Regular Interest will be a variable rate per annum
calculated in accordance with the definition of "Pass-Through
Rate".
(2)
Neither Class of the Class X Certificates will have a Class
Principal
Balance or entitle Holders thereof to receive distributions of
principal.
Each Class of the Class X Certificates will have a Class Notional
Amount
that will equal the aggregate of the Component Notional Amounts of
the
Class X Components for such Class from time to time. As more
specifically
provided herein, interest in respect of each Class of the Class X
Certificates will consist of the aggregate amount of interest
accrued on
the respective Component Notional Amounts of the Class X Components
for
such Class from time to time.
4
(3)
Refers to the Class A-MFL REMIC II Regular Interest and not the
Class A-MFL
Certificates.
The portion of the Trust Fund consisting of (i) the Class A-MFL
REMIC
I Regular Interest (and, except for the Depositor Retained Amounts,
distributions thereon), the Swap Agreement (and payments by the
Swap
Counterparty thereunder) and the Floating Rate Account and (ii)
amounts held
from time to time in the Floating Rate Account that represent
distributions on
the Class A-MFL REMIC I Regular Interest and payments by the Swap
Counterparty
under the Swap Agreement, shall be treated as a grantor trust for
federal income
tax purposes and shall be designated as "Grantor Trust A-MFL". As
provided
herein, the Trustee shall take all actions required hereunder to
ensure that the
portion of the Trust Fund consisting of the Grantor Trust A-MFL
Assets maintains
its status as a grantor trust under federal income tax law and not
be treated as
part of any REMIC Pool. The Class A-MFL Certificates shall
represent undivided
beneficial interests in Grantor Trust A-MFL as described herein.
The portion of the Trust Fund and consisting of (i) the Additional
Interest and the Additional Interest Account and (ii) amounts held
from time to
time in the Additional Interest Account that represent Additional
Interest,
shall be treated as a grantor trust for federal income tax purposes
and shall be
designated as "Grantor Trust Y". As provided herein, the Trustee
shall take all
actions required hereunder to ensure that the portion of the Trust
Fund
consisting of the Grantor Trust Y Assets maintains its status as a
grantor trust
under federal income tax law and not be treated as part of any
REMIC Pool. The
Class Y Certificates shall represent undivided beneficial interests
in Grantor
Trust Y as described herein.
Two (2) mortgage loans, collectively referred to in this Agreement
as
the Carolina Place B-Note Loans, are not part of the Trust Fund but
are secured
by a corresponding Mortgage on a corresponding Mortgaged Property
that also
secures the Carolina Place Mortgage Loan, which is part of the
Trust Fund. The
Carolina Place Loan Combination consists of the Carolina Place
Mortgage Loan and
the Carolina Place B-Note Loans. As and to the extent provided in
the Carolina
Place Co-Lender Agreement, the Carolina Place B-Note Loans are
subordinate to
the Carolina Place Mortgage Loan. As and to the extent provided
herein and in
the Carolina Place Co-Lender Agreement, the Carolina Place B-Note
Loans will be
serviced and administered in accordance with this Agreement.
Amounts
attributable to the Carolina Place B-Note Loans will not be assets
of the Trust
Fund, and will be owned by the Carolina Place B-Noteholder.
Capitalized terms used but not otherwise defined in this
Preliminary
Statement have the respective meanings assigned thereto in Section
1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal
Agent agree as follows:
5
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases, unless the context
otherwise
requires, shall have the meanings specified in this Article.
"30/360 Basis": The accrual of interest calculated on the basis of
a
360-day year consisting of twelve 30-day months.
"A-Note Mortgage Loan": Any Mortgage Loan as to which the related
Mortgage, which encumbers the related Mortgaged Property, also
secures one or
more B-Note Loans, which B-Note Loan(s) will not be included in the
Trust Fund.
The Carolina Place Mortgage Loan is the only A-Note Mortgage Loan.
"A/B Custodial Account": With respect to any A/B Loan Combination,
the
separate account (which may be a sub-account of the Certificate
Account) created
and maintained by the Master Servicer pursuant to Section 3.04(h)
and held on
behalf of the Certificateholders and the related B-Noteholder(s),
which shall be
entitled substantially as follows: "Wachovia Bank, National
Association, as
Master Servicer for LaSalle Bank National Association, as Trustee,
on behalf of
and in trust for the registered holders of Citigroup Commercial
Mortgage Trust
2005-C3, Commercial Mortgage Pass-Through Certificates, Series
2005-C3, and
[name(s) of the related B-Noteholder(s)], as their interests may
appear". Each
A/B Custodial Account shall be an Eligible Account or a sub-account
of an
Eligible Account.
"A/B Intercreditor Agreement": With respect to any A/B Loan
Combination, the intercreditor, co-lender or similar agreement in
effect between
(i) the Trust Fund as holder of the related A-Note Mortgage Loan
and (ii) the
related B-Noteholder(s).
"A/B Loan Combination": Collectively, any A-Note Mortgage Loan and
the
related B-Note Loan(s). The term "A/B Loan Combination" shall
include any
successor REO Mortgage Loan with respect to the related A-Note
Mortgage Loan and
any successor REO Mortgage Loan(s) with respect to the related
B-Note Loan(s).
"A/B Mortgaged Property": The Mortgaged Property securing an A/B
Loan
Combination.
"A/B REO Account": With respect to any A/B Loan Combination, a
segregated account or accounts created and maintained by the
Special Servicer
pursuant to Section 3.16 on behalf of the Trustee, in trust for the
Certificateholders, and the related B-Noteholder(s), which shall be
entitled
substantially as follows: "Allied Capital Corporation, as Special
Servicer for
LaSalle Bank National Association, as Trustee in trust for
registered holders of
Citigroup Commercial Mortgage Trust 2005-C3, Commercial Mortgage
Pass-Through
Certificates, Series 2005-C3, and [name(s) of the related
B-Noteholder(s)], as
their interests may appear".
6
"A/B REO Property": With respect to each A/B Loan Combination, the
related Mortgaged Property if such Mortgaged Property is acquired
on behalf and
in the name of the Trust Fund, for the benefit of the
Certificateholders, and
the related B-Noteholder(s), as their interests may appear, through
foreclosure,
acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with
applicable law in connection with the default or imminent default
of such A/B
Loan Combination.
"Accrued Certificate Interest": With respect to any Class of
Principal
Balance Certificates (other than the Class A-MFL Certificates) or
the Class
A-MFL REMIC II Regular Interest for any Distribution Date, one
month's interest
at the Pass-Through Rate applicable to such Class of Certificates
or the Class
A-MFL REMIC II Regular Interest, as the case may be, for such
Distribution Date,
accrued on the related Class Principal Balance outstanding
immediately prior to
such Distribution Date; and, with respect to a Class of Class X
Certificates for
any Distribution Date, the aggregate amount of Accrued Component
Interest for
the related Interest Accrual Period for all of the Class X
Components with
respect to such Class for such Distribution Date. Accrued
Certificate Interest
shall be calculated on a 30/360 Basis and, with respect to each
Class of Regular
Certificates and the Class A-MFL REMIC II Regular Interest for any
Distribution
Date, shall be deemed to accrue during the calendar month preceding
the month in
which such Distribution Date occurs.
"Accrued Component Interest": With respect to any Class X Component
for any Distribution Date, one month's interest at the Class X
Strip Rate
applicable to such Class X Component for such Distribution Date,
accrued on the
Component Notional Amount of such Class X Component outstanding
immediately
prior to such Distribution Date. Accrued Component Interest shall
be calculated
on a 30/360 Basis and, with respect to each Class X Component for
any
Distribution Date, shall be deemed to accrue during the calendar
month preceding
the month in which such Distribution Date occurs.
"Actual/360 Basis": The accrual of interest calculated on the basis
of
the actual number of days elapsed during any calendar month (or
other applicable
accrual period) in a year assumed to consist of 360 days.
"Actual/360 Mortgage Loan": Each Mortgage Loan that accrues
interest
on an Actual/360 Basis and that is identified as an Actual/360
Mortgage Loan on
the Mortgage Loan Schedule.
"Additional Interest": With respect to any ARD Mortgage Loan after
its
Anticipated Repayment Date, all interest accrued on the principal
balance of
such ARD Mortgage Loan at the Additional Interest Rate (the payment
of which
interest shall, under the terms of such Mortgage Loan, be deferred
until the
entire outstanding principal balance of such ARD Mortgage Loan has
been paid),
together with all interest, if any, accrued at the related Mortgage
Rate plus
the related Additional Interest Rate on such deferred interest. For
purposes of
this Agreement, Additional Interest on an ARD Mortgage Loan or any
successor REO
Mortgage Loan with respect thereto shall be deemed not to
constitute principal
or any portion thereof and shall not be added to the unpaid
principal balance or
Stated Principal Balance of such ARD Mortgage Loan or successor REO
Mortgage
Loan, notwithstanding that the terms of the
7
related Mortgage Loan documents so permit. To the extent that any
Additional
Interest is not paid on a current basis, it shall be deemed to be
deferred
interest.
"Additional Interest Account": The segregated account, accounts or
subaccounts created and maintained by the Trustee pursuant to
Section 3.04(d)
which shall be entitled "LaSalle Bank National Association, as
Trustee, in trust
for the registered holders of Citigroup Commercial Mortgage Trust
2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3,
Additional
Interest Account". The Additional Interest Account shall not be an
asset of any
REMIC Pool.
"Additional Interest Rate": With respect to any ARD Mortgage Loan
after its Anticipated Repayment Date, the incremental increase in
the per annum
rate at which such ARD Mortgage Loan accrues interest after the
Anticipated
Repayment Date (in the absence of defaults) as calculated and as
set forth in
the related Mortgage Loan documents.
"Additional Trust Fund Expense": Any Special Servicing Fees,
Workout
Fees, Liquidation Fees and, in accordance with Sections 3.03(d) and
4.03(d),
interest payable to any party hereto on Advances made thereby (to
the extent not
offset by Penalty Interest and late payment charges or amounts
otherwise payable
to any related B-Noteholder) and amounts payable to the Special
Servicer in
connection with inspections of Mortgaged Properties required
pursuant to the
first sentence of Section 3.12(a) (to the extent not otherwise paid
from Penalty
Interest and late payment charges or amounts otherwise payable to
any related
B-Noteholder or recovered from the related Mortgagor), as well as
(without
duplication) any of the expenses of the Trust Fund that may be
withdrawn (x)
pursuant to any of clauses (xi), (xii), (xiii), (xv), (xviii), and
(xix) of
Section 3.05(a), out of general collections on the Mortgage Loans
and any REO
Properties on deposit in the Certificate Account, or (y) pursuant
to any of
clauses (x), (xi), (xii), (xiv) and (xv) of Section 3.05(g), out of
collections
on any A/B Loan Combination or any related A/B REO Property on
deposit in the
related A/B Custodial Account, but only to the extent that such
collections
would otherwise be transferred to the Certificate Account with
respect to the
related A-Note Mortgage Loan or any successor REO Mortgage Loan
with respect
thereto, or (z) pursuant to any of clauses (ii), (iv), (v) and (vi)
of Section
3.05(b) out of general collections on the Mortgage Loans and any
REO Properties
on deposit in the Distribution Account; provided that for purposes
of the
allocations contemplated by Section 4.04, no such expense shall be
deemed to
have been incurred by the Trust Fund until such time as the payment
thereof is
actually made from the Certificate Account, an A/B Custodial
Account or the
Distribution Account, as the case may be.
"Additional Yield Amount": With respect to (i) any Distribution
Date,
(ii) any Class of Principal Balance Certificates (other than any
Excluded Class)
or the Class A-MFL REMIC II Regular Interest, and (iii) any Yield
Maintenance
Charge or Prepayment Premium actually collected during the related
Collection
Period on a Mortgage Loan or an REO Mortgage Loan (for purposes of
this
definition, the "Prepaid Loan") in a Loan Group with respect to
which
distributions of principal are being made on such Class of
Principal Balance
Certificates or the Class A-MFL REMIC II Regular Interest, as the
case may be,
on such Distribution Date, the product of (a) such Yield
Maintenance Charge
and/or Prepayment Premium, multiplied by (b) a fraction, which in
no event will
be greater than one or less than zero, the numerator of which is
8
equal to the positive excess, if any, of (i) the Pass-Through Rate
for such
Class of Principal Balance Certificates or the Class A-MFL REMIC II
Regular
Interest, as the case may be, for such Distribution Date, over (ii)
the related
Discount Rate, and the denominator of which is equal to the
positive excess, if
any, of (i) the Mortgage Rate for the Prepaid Loan, over (ii) the
related
Discount Rate, multiplied by (c) a fraction, the numerator of which
is equal to
the amount of principal distributable on such Class of Principal
Balance
Certificates or the Class A-MFL REMIC II Regular Interest, as the
case may be,
on such Distribution Date with respect to the Loan Group that
includes the
Prepaid Loan, and the denominator of which is equal to that portion
of the Net
Principal Distribution Amount for such Distribution Date that is
attributable to
the Loan Group that includes the Prepaid Loan.
"Adjusted REMIC I Remittance Rate": With respect to any REMIC I
Regular Interest (other than the REMIC I Regular Interest A-MFL),
for any
Distribution Date, an annual rate equal to the Pass-Through Rate in
effect for
such Distribution Date for the Class of Principal Balance
Certificates as to
which such REMIC I Regular Interest is the only Corresponding REMIC
I Regular
Interest or one of two or more Corresponding REMIC II Regular
Interests; and,
with respect to REMIC I Regular Interest A-MFL, for any
Distribution Date, an
annual rate equal to the Pass-Through Rate in effect for such
Distribution for
the Class A-MFL REMIC II Regular Interest.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event": As defined in Section 10.02(e).
"Adverse REMIC Event": As defined in Section 10.01(h).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such
specified Person.
For the purposes of this definition, "control" when used with
respect to any
specified Person means the power to direct the management and
policies of such
Person, directly or indirectly, whether through the ownership of
voting
securities, by contract or otherwise and the terms "controlling"
and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement and all
amendments
hereof and supplements hereto.
"Anticipated Repayment Date": For each ARD Mortgage Loan, the date
specified in the related Mortgage Note after which the per annum
rate at which
interest accrues on such ARD Mortgage Loan will increase as
specified in the
related Mortgage Note (other than as a result of a default
thereunder).
"Appraisal": With respect to any Mortgage Loan, an appraisal of the
related Mortgaged Property from an Independent Appraiser selected
by the Special
Servicer or the Master Servicer, prepared in accordance with 12 CFR
Section
225.64 and conducted in accordance with the standards of the
American Appraisal
Institute by an Independent Appraiser, which Independent Appraiser
shall be
advised to take into account the factors specified in Section
3.09(a), any
available environmental, engineering or other third-party reports,
and other
factors
9
that a prudent real estate appraiser would consider. Absent bad
faith, any party
hereto may conclusively rely on any Appraisal obtained by or
delivered to that
party in accordance with this Agreement for purposes of
establishing the
Appraised Value of a Mortgaged Property.
"Appraisal Reduction Amount": With respect to any Required
Appraisal
Mortgage Loan, subject to Section 6.12(d) and Section 6.12(e), the
excess, if
any, of: (a) the sum of, as calculated by the Master Servicer as of
the first
Determination Date immediately succeeding the Master Servicer
obtaining
knowledge of the subject Mortgage Loan becoming a Required
Appraisal Mortgage
Loan if no new Required Appraisal is required or the date on which
a Required
Appraisal (or letter update or internal valuation, if applicable)
is obtained
and each Determination Date thereafter so long as the related
Mortgage Loan
remains a Required Appraisal Mortgage Loan (without duplication),
(i) the Stated
Principal Balance of the subject Required Appraisal Mortgage Loan,
(ii) to the
extent not previously advanced by or on behalf of the Master
Servicer, the
Trustee or the Fiscal Agent, all unpaid interest accrued on such
Required
Appraisal Mortgage Loan through the most recent Due Date prior to
such
Determination Date at a per annum rate equal to the related Net
Mortgage Rate
(exclusive of any portion thereof that constitutes Additional
Interest), (iii)
all accrued but unpaid Servicing Fees, and all accrued but unpaid
items that,
upon payment, would be Additional Trust Fund Expenses, in respect
of such
Required Appraisal Mortgage Loan, (iv) all related unreimbursed
Advances (plus
accrued interest thereon) made by or on behalf of the Special
Servicer, the
Master Servicer, the Trustee or the Fiscal Agent with respect to
such Required
Appraisal Mortgage Loan and (v) all currently due and unpaid real
estate taxes
and unfunded improvement reserves and assessments, insurance
premiums, and, if
applicable, ground rents in respect of the related Mortgaged
Property; over (b)
an amount equal to the sum of (i) the Required Appraisal Value and
(ii) all
escrows, reserves and letters of credit held for the purposes of
reserves
(provided such letters of credit may be drawn upon for reserve
purposes under
the related loan documents) held with respect to such Required
Appraisal
Mortgage Loan. If the Special Servicer fails to obtain a Required
Appraisal (or
letter update or internal valuation, if applicable) within the time
limit
described in Section 3.09(a), and such Required Appraisal (or
letter update or
internal valuation, if applicable) is required thereunder, then the
Appraisal
Reduction Amount for the related Required Appraisal Mortgage Loan
will equal 25%
of the outstanding principal balance of such Required Appraisal
Mortgage Loan to
be adjusted upon receipt of a Required Appraisal or letter update
or internal
valuation, if applicable.
Notwithstanding the foregoing, the Carolina Place Loan Combination
will be treated as a single Mortgage Loan for purposes of
calculating an
Appraisal Reduction Amount. Any Appraisal Reduction Amount with
respect to the
Carolina Place Loan Combination will be allocated first to the
Carolina Place
B-Note Loans (or any successor REO B-Note Loans with respect
thereto) up to the
outstanding principal thereof, and then to the Carolina Place
A-Note Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto). For
purposes of
determining the Carolina Place Controlling Party, the foregoing
allocation shall
be subject to Section 6.12(f).
"Appraised Value": With respect to each Mortgaged Property, the
appraised value thereof based upon the most recent Appraisal (or
letter update
or internal valuation, if applicable) that is contained in the
related Servicing
File. Absent bad faith, any party hereto may
10
conclusively rely on any Appraisal (or letter update or internal
valuation, if
applicable) obtained by or delivered to that party in accordance
with this
Agreement for purposes of establishing the Appraised Value of a
Mortgaged
Property.
"ARD Mortgage Loan": Any Mortgage Loan that provides that if the
unamortized principal balance thereof is not repaid on its
Anticipated Repayment
Date, such Mortgage Loan will accrue Additional Interest at the
rate specified
in the related Mortgage Note and the Mortgagor is required to apply
excess
monthly cash flow generated by the related Mortgaged Property to
the repayment
of the outstanding principal balance on such Mortgage Loan.
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or
instrument
executed by the Mortgagor in connection with the origination of the
related
Serviced Loan.
"Assumed Periodic Payment": With respect to any Balloon Mortgage
Loan
for its scheduled maturity date (provided that such Mortgage Loan
has not been
paid in full and no other Liquidation Event has occurred in respect
thereof on
or before such scheduled maturity date) and for any Due Date
thereafter as of
which such Mortgage Loan remains outstanding and part of the Trust
Fund, the
Periodic Payment of principal and/or interest deemed to be due in
respect
thereof on such Due Date equal to the amount that would have been
due in respect
of such Mortgage Loan on such Due Date if the related Mortgagor had
been
required to continue to pay principal in accordance with the
amortization
schedule, if any, and pay interest accrued at the Mortgage Rate, in
each case in
effect immediately prior to, and without regard to the occurrence
of, its
scheduled maturity date. With respect to any REO Mortgage Loan or
REO B-Note
Loan, for any Due Date therefor as of which the related REO
Property remains
part of the Trust Fund, the Periodic Payment of principal and/or
interest deemed
to be due in respect thereof on such Due Date equal to the amount
that would
have been due in respect of the predecessor Mortgage Loan (or, in
the case of
any REO B-Note Loan, the predecessor B-Note Loan) on such Due Date
if (x) the
related Mortgagor had been required to continue to pay principal in
accordance
with the amortization schedule, if any, and pay interest accrued at
the Mortgage
Rate, in each case in effect on the Due Date immediately prior to
the
predecessor Mortgage Loan becoming an REO Mortgage Loan or the
predecessor
B-Note Loan becoming an REO B-Note Loan, as the case may be, and
(y) the
predecessor Mortgage Loan or B-Note Loan, as the case may be, had
remained
outstanding (or, if the predecessor Mortgage Loan or B-Note Loan,
as the case
may be, was a Balloon Loan and such Due Date coincides with or
follows what had
been its scheduled maturity date, the Assumed Periodic Payment that
would have
been deemed due in respect of the predecessor Mortgage Loan or
B-Note Loan, as
the case may be, on such Due Date had it remained outstanding).
"Authenticating Agent": Any authenticating agent appointed pursuant
to
Section 8.12 (or, in the absence of any such appointment, the
Trustee).
11
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to (a) the sum of, without duplication, (i)
the aggregate
of the amounts on deposit in the Certificate Account and the
Distribution
Account as of the close of business at the end of the related
Collection Period
and any other amounts collected by or on behalf of the Master
Servicer as of the
close of business on the last day of such Collection Period and
required to be
deposited in the Certificate Account, (ii) the aggregate amount of
any P&I
Advances made by the Master Servicer, the Trustee or the Fiscal
Agent for
distribution on the Certificates on such Distribution Date pursuant
to Section
4.03, (iii) to the extent not already included in clause (a)(i),
the aggregate
amount transferred from the Pool REO Account (if established)
and/or any A/B
Custodial Account to the Certificate Account, on or prior to the
P&I Advance
Date in such month, pursuant to Section 3.16(c) and/or Section
3.05(g), as
applicable, (iv) the aggregate amount deposited by the Master
Servicer in the
Certificate Account for such Distribution Date pursuant to Section
3.19 in
connection with Prepayment Interest Shortfalls, and (v) for each
Distribution
Date occurring in March, and for the final Distribution Date if the
final
Distribution Date occurs in February or, if such year is not a leap
year, in
January, the aggregate of the Interest Reserve Amounts in respect
of each
Interest Reserve Mortgage Loan and Interest Reserve REO Mortgage
Loan deposited
into the Distribution Account pursuant to Section 3.05(e), net of
(b) the
portion of the amount described in clause (a) of this definition
that represents
one or more of the following: (i) collected Periodic Payments that
are due on a
Due Date following the end of the related Collection Period, (ii)
any amounts
payable or reimbursable to any Person from the (A) Certificate
Account pursuant
to clauses (ii)-(xv) and (xviii)-(xxi) of Section 3.05(a) or (B)
the
Distribution Account pursuant to clauses (ii)-(vi) of Section
3.05(b), (iii)
Prepayment Premiums and Yield Maintenance Charges, (iv) Additional
Interest, (v)
with respect to the Distribution Date occurring in February of each
year and in
January of each year that is not a leap year, the Interest Reserve
Amounts with
respect to the Interest Reserve Mortgage Loans and any Interest
Reserve REO
Mortgage Loans to be withdrawn from the Distribution Account and
deposited in
the Interest Reserve Account in respect of such Distribution Date
and held for
future distribution pursuant to Section 3.04(e), and (vi) any
amounts deposited
in the Certificate Account or the Distribution Account in error.
The Available
Distribution Amount will not include any amounts required to be
distributed
pursuant to the terms of an A/B Intercreditor Agreement or this
Agreement to a
B-Noteholder.
"B-Note Loan": With respect to the Carolina Place Mortgage Loan,
each
of the Carolina Place B-Note Loans; and, with respect to any other
A-Note
Mortgage Loan, the other mortgage loan that (i) is not included in
the Trust
Fund, (ii) is subordinate in right of payment to such A-Note
Mortgage Loan to
the extent set forth in the related A/B Intercreditor Agreement and
(iii) is
secured by the same Mortgage on the same Mortgaged Property as such
A-Note
Mortgage Loan.
"B-Noteholder": Each holder of (i) the Mortgage Note for a B-Note
Loan
and (ii) the corresponding rights under the related A/B
Intercreditor Agreement.
"Balloon Loan": Any Serviced 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.
12
"Balloon Mortgage Loan": Any Mortgage Loan that is a Balloon Loan.
"Balloon Payment": With respect to any Balloon Loan as of any date
of
determination, the Periodic Payment payable on the scheduled
maturity date of
such Serviced Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time
to time (Title 11 of the United States Code).
"Bid Allocation": With respect to the Master Servicer and each Sub
Servicer and the proceeds of any bid pursuant to Section 7.01(c),
the amount of
such proceeds (net of any expenses incurred in connection with such
bid and the
transfer of servicing), multiplied by a fraction equal to (a) the
Servicer Fee
Amount for the Master Servicer or such Sub-Servicer, as the case
may be, as of
such date of determination, over (b) the aggregate of the Servicer
Fee Amounts
for the Master Servicer and all of the Sub-Servicers as of such
date of
determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Book-Entry Non-Registered Certificate": Any Non-Registered
Certificate that constitutes a Book-Entry Certificate.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York or the cities in
which the
Corporate Trust Office of the Trustee (which as of the Closing Date
is Chicago,
Illinois) or the offices of the Master Servicer (which as of the
Closing Date is
Charlotte, North Carolina) or the offices of the Special Servicer
(which as of
the Closing Date is Washington, D.C.) are located, are authorized
or obligated
by law or executive order to remain closed.
"Carolina Place Available Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the portion of the
applicable
Available Distribution Amount for such Distribution Date
attributable to the
Carolina Place Mortgage Loan or any successor REO Mortgage Loan
with respect
thereto (calculated without regard to any reimbursement of
Nonrecoverable
Advances in respect of any Mortgage Loan or REO Mortgage Loan,
including the
Carolina Place Mortgage Loan or any successor REO Mortgage Loan
with respect
thereto, and/or any payment of Additional Trust Fund Expenses in
respect of any
Mortgage Loan or REO Mortgage Loan, including the Carolina Place
Mortgage Loan
or any successor REO Mortgage Loan with respect thereto), reduced
(to not less
than zero) by (b) the sum of (i) all Nonrecoverable Advances (if
any) with
respect to the Carolina Place Mortgage Loan or any successor REO
Mortgage Loan
with respect thereto reimbursed, and all Additional Trust Fund
Expenses (if any)
related or allocable to the Carolina Place Mortgage Loan or any
successor REO
Mortgage Loan with respect thereto paid, out of general collections
on the other
Mortgage Loans and REO Properties during the related Collection
Period and (ii)
the excess, if any, of (A) the aggregate of the amounts described
in clause
(b)(i) of this definition for all Collection Periods, if any, prior
to the
related Collection Period, over (B) the aggregate of the
13
amounts described in clause (a) of this definition for all
Distribution Dates
prior to the subject Distribution Date.
"Carolina Place B-Note Control Appraisal Event": A "Note B Control
Appraisal Event" within the meaning of the Carolina Place Co-Lender
Agreement.
"Carolina Place B-Note Loan": The Carolina Place B-1-Note Loan or
the
Carolina Place B-2-Note Loan, as applicable.
"Carolina Place B-Noteholder": The Carolina Place B-1-Noteholder or
the Carolina Place B-2-Noteholder, as applicable.
"Carolina Place B-1-Note Loan": The mortgage loan in the original
principal amount of $27,919,877.60 that is evidenced by a Mortgage
Note
designated as "Note B-1" and secured by the same Mortgage
encumbering the
Carolina Place Mortgaged Property as the Carolina Place Mortgage
Loan.
"Carolina Place B-1-Noteholder": The holder of the Mortgage Note
for
the Carolina Place B-1-Note Loan.
"Carolina Place B-2-Note Loan": The mortgage loan in the original
principal amount of $10,000,000 that is evidenced by a Mortgage
Note designated
as "Note B-2" and secured by the same Mortgage encumbering the
Carolina Place
Mortgaged Property as the Carolina Place Mortgage Loan.
"Carolina Place B-2-Noteholder": The holder of the Mortgage Note
for
the Carolina Place B-2-Note Loan.
"Carolina Place Co-Lender Agreement": The Co-Lender Agreement dated
as
of June 28, 2005, among Citigroup as holder of the Mortgage Note
for the
Carolina Place Mortgage Loan, Hartford Life Insurance Company as
the initial
Carolina Place B-1-Noteholder and Guggenheim Structured Real Estate
Operating
Company, LLC as the initial Carolina Place B-2-Noteholder.
"Carolina Place Controlling B-Noteholder": The "Controlling Note B
Holder" within the meaning of the Carolina Place Co-Lender
Agreement.
"Carolina Place Controlling Party": As defined in Section 6.12(c).
"Carolina Place Directing Holder": The "Directing Holder" within
the
meaning of the Carolina Place Co-Lender Agreement.
"Carolina Place Event of Default": An "Event of Default" as defined
under the Carolina Place Mortgage Loan documents.
14
"Carolina Place Loan Combination": Collectively, the Carolina Place
Mortgage Loan and the Carolina Place B-Note Loans (or,
collectively, any REO
Loans with respect to the foregoing Serviced Loans).
"Carolina Place Major Action": A "Major Action" within the meaning
of
the Carolina Place Co-Lender Agreement.
"Carolina Place Mortgage Loan": The Mortgage Loan identified as
loan
number 1 on the Mortgage Loan Schedule and secured by a Mortgage on
the Carolina
Place Mortgaged Property.
"Carolina Place Mortgaged Property": The Mortgaged Property
identified
on the Mortgage Loan Schedule as Carolina Place.
"Carolina Place Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the aggregate of the amounts
comprising
the Principal Distribution Amount for such Distribution Date
pursuant to clauses
(a) through (f), inclusive, of the definition of "Principal
Distribution Amount"
that relate to the Carolina Place Mortgage Loan or any successor
REO Mortgage
Loan with respect thereto.
"Carolina Place REO Property": The Carolina Place Mortgaged
Property,
if it shall become an REO Property hereunder.
"Carolina Place Special Servicer": The party responsible for
performing the duties of Special Servicer hereunder with respect to
the Carolina
Place Loan Combination or any related REO Property.
"Carolina Place Threshold Event Collateral": Any "Threshold Event
Collateral" within the meaning of the Carolina Place Co-Lender
Agreement.
"CERCLA": The Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended.
"Certificate": Any one of the Citigroup Commercial Mortgage Trust
2005-C3, Commercial Mortgage Pass-Through Certificates, Series
2005-C3, as
executed by the Certificate Registrar and authenticated and
delivered hereunder
by the Authenticating Agent.
"Certificate Account": The segregated account or accounts created
and
maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the
Trustee in trust for Certificateholders, which shall be entitled
"Wachovia Bank,
National Association, as Master Servicer for LaSalle Bank National
Association,
as Trustee, on behalf of and in trust for the registered holders of
Citigroup
Commercial Mortgage Trust 2005-C3, Commercial Mortgage Pass-Through
Certificates, Series 2005-C3".
"Certificate Deferred Interest": The amount by which interest
distributable with respect to any Class of Principal Balance
Certificates (other
than the Class A-MFL Certificates)
15
or the Class A-MFL REMIC II Regular Interest, as the case may be,
is reduced by
the amount of Mortgage Deferred Interest allocable to such Class on
any
Distribution Date.
"Certificate Factor": With respect to any Class of Certificates
(other
than the Class R and Class Y Certificates) or the Class A-MFL REMIC
II Regular
Interest as of any date of determination, a fraction, expressed as
a decimal
carried to eight places, the numerator of which is the then-current
Class
Principal Balance or Class Notional Amount, as applicable, of such
Class of
Certificates or the Class A-MFL REMIC II Regular Interest, as the
case may be,
and the denominator of which is the Original Class Principal
Balance or Original
Class Notional Amount of such Class of Certificates or the Class
A-MFL REMIC II
Regular Interest, as the case may be.
"Certificate Notional Amount": With respect to any Class X
Certificate, as of any date of determination, the then notional
amount of such
Certificate equal to the product of (a) the Percentage Interest
evidenced by
such Certificate, multiplied by (b) the then Class Notional Amount
of the Class
X Certificates.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected
on the books
of the Depository or on the books of a Depository Participant or on
the books of
an indirect participating brokerage firm for which a Depository
Participant acts
as agent.
"Certificate Principal Balance": With respect to any Principal
Balance
Certificate, as of any date of determination, the then outstanding
principal
amount of such Certificate equal to the product of (a) the
Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class
Principal
Balance of the Class of Certificates to which such Certificate
belongs.
"Certificate Register" and "Certificate Registrar": The register
maintained and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) only a
Permitted
Transferee shall be the Holder of a Class R Certificate for any
purpose hereof
and, (ii) solely for the purposes of giving any consent, approval
or waiver
pursuant to this Agreement that relates to any of the Depositor,
any Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the Trustee
or the
Fiscal Agent in its respective capacity as such (except with
respect to
amendments or waivers referred to in Sections 7.04 and 11.01
hereof, any
consent, approval or waiver required or permitted to be made by the
Majority
Controlling Class Certificateholder (or, with respect to the
Carolina Place
Mortgage Loan or any related REO Property, the Majority Class CP
Certificateholder(s)) or the Controlling Class Representative (or,
with respect
to the Carolina Place Mortgage Loan or any related REO Property,
the Class CP
Representative) and any election, removal or replacement of the
Special Servicer
or the Controlling Class Representative (or, with respect to the
Carolina Place
Mortgage Loan or any related REO Property, the Class CP
Representative) pursuant
to Section 6.09 or Section 3.25, as applicable), any Certificate
registered in
the name of the Depositor, any Mortgage Loan Seller, the Master
Servicer, the
Special Servicer, the Trustee or the Fiscal Agent,
16
as the case may be, or any Certificate registered in the name of
any of their
respective Affiliates, shall be deemed not to be outstanding, and
the Voting
Rights to which it is entitled shall not be taken into account in
determining
whether the requisite percentage of Voting Rights necessary to
effect any such
consent, approval or waiver that relates to it has been obtained.
The
Certificate Registrar shall be entitled to request and rely upon a
certificate
of the Depositor, the Master Servicer or the Special Servicer in
determining
whether a Certificate is registered in the name of an Affiliate of
such Person.
All references herein to "Holders" or "Certificateholders" shall
reflect the
rights of Certificate Owners as they may indirectly exercise such
rights through
the Depository and the Depository Participants, except as otherwise
specified
herein; provided, however, that the parties hereto shall be
required to
recognize as a "Holder" or "Certificateholder" only the Person in
whose name a
Certificate is registered in the Certificate Register.
"Certification": As defined in Section 8.16(b).
"Citigroup": Citigroup Global Markets Realty Corp. or its successor
in
interest.
"Citigroup Mortgage Loan Purchase Agreement": That certain mortgage
loan purchase agreement, dated as of June 15, 2005, between the
Depositor and
Citigroup and relating to the transfer of the Citigroup Mortgage
Loans to the
Depositor.
"Citigroup Mortgage Loans": Each of the Mortgage Loans transferred
and
assigned to the Depositor pursuant to the Citigroup Mortgage Loan
Purchase
Agreement and each Qualified Substitute Mortgage Loan delivered in
replacement
thereof in accordance with this Agreement and the Citigroup
Mortgage Loan
Purchase Agreement.
"Class": Collectively, all of the Certificates bearing the same
alphabetic or alphanumeric, as applicable, class designation.
"Class A-1 Certificate": Any one of the Certificates with a "Class
A-1" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-1A Certificate": Any one of the Certificates with a "Class
A-1A" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-2 Certificate": 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 "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class
A-3" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
17
"Class A-4 Certificate": Any one of the Certificates with a "Class
A-4" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-J Certificate": Any one of the Certificates with a "Class
A-J" designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-M Certificate": Any one of the Certificates with a "Class
A-M" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-MFL Additional Fixed Swap Payment": With respect to any
Distribution Date and the Class A-MFL Swap Payment Date to which it
relates
based on the confirmation under the Swap Agreement, the applicable
"Additional
Fixed Amount" within the meaning of the confirmation under the Swap
Agreement.
"Class A-MFL Available Funds": With respect to any Distribution
Date,
an amount equal to (a) the sum of (i) the total amount of all
principal and/or
interest distributions, as well as all distributions of Yield
Maintenance
Charges and Prepayment Premiums, properly made on or in respect of
the Class
A-MFL REMIC II Regular Interest with respect to such Distribution
Date and (ii)
the amounts, if any, received from the Swap Counterparty pursuant
to the Swap
Agreement for such Distribution Date, less (b) any Class A-MFL Net
Fixed Swap
Payment, Class A-MFL Additional Fixed Swap Payment and Class A-MFL
Fixed Payer
Shortfall Reimbursement Payment required to be paid to the Swap
Counterparty
pursuant to the Swap Agreement, consistent with Section 3.27, for
such
Distribution Date.
"Class A-MFL Certificate": Any one of the Certificates with a
"Class
A-MFL" designation on the face thereof, substantially in the form
of Exhibit A-1
hereto, and evidencing an interest in Grantor Trust A-MFL.
"Class A-MFL Distribution Conversion": With respect to any
Distribution Date (i) immediately upon and during the continuation
of a Swap
Default of the nature described in clause (i) of the definition of
"Swap
Default" while the Trustee is pursuing remedies under the Swap
Agreement
pursuant to Section 3.27, or (ii) immediately upon and following
the termination
of the Swap Agreement until any replacement agreement is entered
into the
conversion of distributions to the Class A-MFL Certificates from
distributions
based, in part, on floating interest payments from the Swap
Counterparty under
the Swap Agreement to distributions based solely on distributions
in respect of
the Class A-MFL REMIC II Regular Interest, as specified in Section
4.01(c).
"Class A-MFL Fixed Swap Payment": With respect to any Distribution
Date and the Class A-MFL Swap Payment Date to which it relates
based on the
confirmation under the Swap Agreement, the applicable "Fixed
Amount" within the
meaning of the confirmation under the Swap Agreement.
18
"Class A-MFL Fixed Payer Shortfall Reimbursement Payment": With
respect to any Distribution Date and the Class A-MFL Swap Payment
Date to which
it relates based on the confirmation under the Swap Agreement, the
applicable
"Fixed Payer Shortfall Reimbursement Amount" within the meaning of
the
confirmation under the Swap Agreement.
"Class A-MFL Floating Swap Payment": With respect to any
Distribution
Date and the Class A-MFL Swap Payment Date to which it relates
based on the
confirmation under the Swap Agreement, the applicable "Floating
Amount" within
the meaning of the confirmation under the Swap Agreement.
"Class A-MFL Grantor Trust Assets": The assets of Grantor Trust
A-MFL.
"Class A-MFL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to (a) the sum of (i) the
Distributable
Certificate Interest with respect to the Class A-MFL REMIC II
Regular Interest
for such Distribution Date (exclusive, in the case of the initial
Distribution
Date, of the Depositor's Retained Amount) and, to the extent not
previously
paid, for all prior Distribution Dates, (ii) any Class A-MFL Net
Floating Swap
Payment received from the Swap Counterparty for distribution on
such
Distribution Date and (iii) if the Swap Agreement is terminated and
a
replacement Swap Agreement is not obtained, any Swap Termination
Payment
collected during the related Collection Period, less (b) any Class
A-MFL Net
Fixed Swap Payment and/or Class A-MFL Fixed Payer Shortfall
Reimbursement
Payment made to the Swap Counterparty with respect to such
Distribution Date.
"Class A-MFL Net Fixed Swap Payment": With respect to any
Distribution
Date, the excess, if any of (i) the Class A-MFL Fixed Swap Payment
for that
Distribution Date over (ii) the Class A-MFL Floating Swap Payment
for that
Distribution Date.
"Class A-MFL Net Floating Swap Payment": With respect to any
Distribution Date, the excess, if any of (i) the Class A-MFL
Floating Swap
Payment for that Distribution Date over (ii) the Class A-MFL Fixed
Swap Payment
for that Distribution Date.
"Class A-MFL Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the amount of principal
allocated pursuant
to Section 4.01 in respect of the Class A-MFL REMIC II Regular
Interest on such
Distribution Date.
"Class A-MFL REMIC II Regular Interest": The uncertificated
interest
in REMIC II, designated as "Class A-MFL", constituting a "regular
interest" in
REMIC II for purposes of the REMIC Provisions and having the
characteristics
attributable thereto in this Agreement.
"Class A-MFL Swap Payment Date": The "Payment Date" within the
meaning
of the confirmation under the Swap Agreement.
"Class A-SB Certificate": Any one of the Certificates with a "Class
A-SB" designation on the face thereof, substantially in the form of
Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
19
"Class A-SB Planned Principal Balance": With respect to any
Distribution Date, the targeted Class Principal Balance of the
Class A-SB
Certificates for such date set forth on Schedule V attached hereto.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class CP Available Distribution Amount": With respect to any
Distribution Date, an amount equal to the lesser of: (a) the
excess, if any, of
the Carolina Place Available Distribution Amount, over the
aggregate amount
deemed distributed with respect to Loan REMIC Regular Interest CP-I
on such
Distribution Date pursuant to Section 4.01(j); and (b) the sum of
(i) all
Distributable Certificate Interest with respect to the Class CP-1,
Class CP-2
and Class CP-3 Certificates for such Distribution Date and, to the
extent not
previously distributed, for all prior Distribution Dates, (ii) the
Class CP
Principal Distribution Amount for such Distribution Date and (iii)
all Realized
Losses and Additional Trust Fund Expenses previously allocated to,
but not
previously reimbursed with respect to, the Class CP-1, Class CP-2
and Class CP-3
Certificates.
"Class CP Certificate": Any Class CP-1, Class CP-2 or Class CP-3
Certificate.
"Class CP-1 Certificate": Any one of the Certificates with a "Class
CP-1" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class CP-2 Certificate": Any one of the Certificates with a "Class
CP-2" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class CP-3 Certificate": Any one of the Certificates with a "Class
CP-3" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class CP Control Appraisal Event": The event that exists whenever
(1)
the aggregate Certificate Principal Balance of the Class CP-1,
Class CP-2 and
Class CP-3 Certificates, net of that portion of any existing
Appraisal Reduction
Amount with respect to the Carolina Place Loan Combination that is
(in
accordance with the definition of "Appraisal Reduction Amount")
allocable to the
Carolina Place Mortgage Loan or any successor REO Mortgage Loan
with respect
thereto, is less than (2) 25% of the initial aggregate Certificate
Principal
Balance of the Class CP-1, Class CP-2 and Class CP-3 Certificates.
"Class CP Payment Trigger Event": With respect to any Distribution
Date, the event that exists if, as of the related Determination
Date: (a) the
Carolina Place Mortgage Loan
20
was a Specially Serviced Loan and a material default existed with
respect
thereto; (b) the Carolina Place Mortgage Loan is at least 30 days'
delinquent as
to any Periodic Payment; (c) the Carolina Place Mortgaged Property
had become an
REO Property; (d) a decree or order of a court or agency or
supervisory
authority having jurisdiction in the premises in an involuntary
case under any
present or future federal or state bankruptcy, insolvency or
similar law or the
appointment of a conservator or receiver or liquidator in any
insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar
proceedings, or for the winding-up or liquidation of its affairs,
shall have
been entered against the related Mortgagor; (e) the related
Mortgagor shall
consent to the appointment of a conservator or receiver or
liquidator in any
insolvency, readjustment of debt, marshaling of assets and
liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or
substantially all of its property; or (f) the related Mortgagor
shall admit in
writing its inability to pay its debts generally as they become
due, file a
petition to take advantage of any applicable insolvency, bankruptcy
or
reorganization statute, make an assignment for the benefit of its
creditors, or
voluntarily suspend payment of its obligations.
"Class CP Principal Distribution Amount": With respect to any
Distribution Date, the total amount of principal deemed distributed
(or,
assuming that the available funds were sufficient, that would have
been deemed
distributed) to REMIC I with respect to Loan REMIC Regular Interest
CP-II on
such Distribution Date pursuant to clause fifth of Section 4.01(j).
"Class CP Representative": As defined in Section 3.25.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class H Certificate": Any one of the Certificates with a "Class H"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class J"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
21
"Class K Certificate": Any one of the Certificates with a "Class K"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class L Certificate": Any one of the Certificates with a "Class L"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class M Certificate": Any one of the Certificates with a "Class M"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class N Certificate": Any one of the Certificates with a "Class N"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class Notional Amount": The aggregate hypothetical or notional
amount
on which a Class of Class X Certificates accrues or is deemed to
accrue interest
from time to time. As of any date of determination, the Class
Notional Amount of
each Class of Class X Certificates shall equal the then aggregate
of the
Component Notional Amounts of all the Class X Components of such
Class of Class
X Certificates; provided that, for reporting purposes, the Class
Notional Amount
of the Class XP Certificates shall be calculated in accordance with
the
Prospectus Supplement.
"Class O Certificate": Any one of the Certificates with a "Class O"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class P Certificate": Any one of the Certificates with a "Class P"
designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class Principal Balance": The aggregate principal balance of any
Class of Principal Balance Certificates or the Class A-MFL REMIC II
Regular
Interest, as the case may be, outstanding from time to time. As of
the Closing
Date, the Class Principal Balance of each Class of Principal
Balance
Certificates (exclusive of the Class A-MFL Certificates) and the
Class A-MFL
REMIC II Regular Interest shall equal the Original Class Principal
Balance
thereof. On each Distribution Date, the Class Principal Balances of
the
respective Classes of the Principal Balance Certificates (exclusive
of the Class
A-MFL Certificates) and the Class A-MFL REMIC II Regular Interest
shall each be
reduced by the amount of any distributions of principal made
thereon on such
Distribution Date pursuant to Section 4.01 or 9.01, as applicable,
and shall be
further reduced by the amount of any Realized Losses and Additional
Trust Fund
Expenses allocated thereto on such Distribution Date pursuant to
Section
4.04(a). The Class Principal Balances of the respective Classes of
Principal
Balance Certificates (exclusive of the Class A-MFL Certificates)
and the Class
A-MFL REMIC II Regular Interest will each be increased on any
Distribution Date
by the amount of any Certificate Deferred Interest with respect
thereto for
22
such Distribution Date. Distributions in respect of a reimbursement
of Realized
Losses and Additional Trust Fund Expenses previously allocated to a
Class of
Principal Balance Certificates or the Class A-MFL REMIC II Regular
Interest, as
the case may be, shall not constitute distributions of principal
and shall not
result in reduction of the related Class Principal Balance. The
Class Principal
Balance of the Class A-MFL Certificates shall at all times equal
the Class
Principal Balance of the Class A-MFL REMIC II Regular Interest.
"Class R Certificate": Any one of the Certificates with a "Class R"
designation on the face thereof, substantially in the form of
Exhibit A-6
attached hereto, and evidencing the sole class of "residual
interests" in REMIC
I for purposes of the REMIC Provisions.
"Class X Certificate": Any Class XC or Class XP Certificate.
"Class X Component": With respect to the Class XC Certificates, any
Class XC Component; and, with respect to the Class XP Certificates,
any Class XP
Component.
"Class XC Certificate": 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 all of the Class XC Components,
each of which is
a "regular interest" in REMIC II for purposes of the REMIC
Provisions.
"Class XC Component": Any one of the 57 components of the Class XC
Certificates, each of which shall constitute a separate "regular
interest" in
REMIC II for purposes of the REMIC Provisions. Each Class XC
Component shall
accrue interest at its Class XC Strip Rate in effect from time to
time on its
Component Notional Amount outstanding from time to time, which
Component
Notional Amount shall equal the REMIC I Principal Balance of such
Class XC
Component's Corresponding REMIC I Regular Interest. The respective
Class XC
Components shall be designated as follows: XC-A-1-1; XC-A-1-2;
XC-A-1-3;
XC-A-1-4; XC-A-1-5; XC-A-2-1; XC-A-2-2; XC-A-2-3; XC-A-2-4;
XC-A-2-5; XC-A-3-1;
XC-A-3-2; XC-A-SB-1; XC-A-SB-2; XC-A-SB-3; XC-A-4-1; XC-A-4-2;
XC-A-4-3;
XC-A-4-4; XC-A-4-5; XC-A-1A-1; XC-A-1A-2; XC-A-1A-3; XC-A-1A-4;
XC-A-1A-5;
XC-A-1A-6; XC-A-1A-7; XC-A-1A-8; XC-A-1A-9; XC-A-1A-10; XC-A-1A-11;
XC-A-1A-12;
XC-A-1A-13; XC-A-1A-14; XC-A-1A-15; XC-A-1A-16; XC-A-MFL; XC-A-M;
XC-A-J; XC-B;
XC-C; XC-D-1; XC-D-2; XC-D-3; XC-E-1; XC-E-2; XC-E-3; XC-F; XC-G;
XC-H; XC-J;
XC-K; XC-L; XC-M; XC-N; XC-O; and XC-P, respectively.
"Class XC Strip Rate": With respect to any Class XC Component, for
any
Distribution Date, an annual rate equal to either: (i) if such
Class XC
Component has a Corresponding Class XP Component, and if such
Distribution Date
is, or occurs prior to, the Class XP Termination Date for such
Corresponding
Class XP Component, the excess, if any, of (A) the REMIC I
Remittance Rate with
respect to such Class XC Component's Corresponding REMIC I Regular
Interest for
such Distribution Date, over (B) the greater of (1) the Adjusted
REMIC I
Remittance Rate with respect to such Class XC Component's
Corresponding REMIC I
Regular Interest for such Distribution Date and (2) the Reference
Rate for such
Distribution Date; or (ii) in all other cases, the excess, if any,
of (X) the
REMIC I Remittance Rate with respect to such Class XC Component's
Corresponding
REMIC I Regular Interest for such
23
Distribution Date, over (Y) the Adjusted REMIC I Remittance Rate
with respect to
such Class XC Component's Corresponding REMIC I Regular Interest
for such
Distribution Date.
"Class XP Certificate": Any one of the Certificates with a "Class
XP"
designation on the face thereof, substantially in the form of
Exhibit A-2
hereto, and evidencing all of the Class XP Components, each of
which is a
"regular interest" in REMIC II for purposes of the REMIC
provisions.
"Class XP Component": Any one of the 45 components of the Class XP
Certificates, each of which shall constitute a separate "regular
interest" in
REMIC II for purposes of the REMIC Provisions. Each Class XP
Component shall
accrue interest at its Class XP Strip Rate in effect from time to
time on its
Component Notional Amount outstanding from time to time, which
Component
Notional Amount shall equal the REMIC I Principal Balance of such
Class XP
Component's Corresponding REMIC I Regular Interest. The respective
Class XP
Components shall be designated as specified in the definition of
"Class XP
Termination Date".
"Class XP Strip Rate": With respect to any Class XP Component, for
any
Distribution Date, an annual rate equal to either: (i) if such
Distribution Date
is, or occurs prior to, the Class XP Termination Date for such
Class XP
Component, the excess, if any, of (A) the lesser of (1) the REMIC I
Remittance
Rate with respect to such Class XP Component's Corresponding REMIC
I Regular
Interest for such Distribution Date, and (2) the Reference Rate for
such
Distribution Date, over (B) the Adjusted REMIC I Remittance Rate
with respect to
such Class XP Component's Corresponding REMIC I Regular Interest
for such
Distribution Date; or (ii) if such Distribution Date is subsequent
to the Class
XP Termination Date for such Class XP Component, 0% per annum.
"Class XP Termination Date": With respect to any Class XP
Component,
the Distribution Date in the month and year specified opposite the
alphanumeric
designation for such Class XP Component in the following table.
Designation of Class XP
Month and Year of Class XP
Component
Termination Date
-----------------------
--------------------------
XP-A-1-2
December 2005
XP-A-1-3
June 2006
XP-A-1-4
December 2006
XP-A-1-5
June 2007
XP-A-2-1
June 2007
XP-A-2-2
December 2007
XP-A-2-3
June 2008
XP-A-2-4
December 2008
XP-A-2-5
June 2009
XP-A-3-1
June 2009
XP-A-3-2
December 2009
XP-A-SB-1
December 2009
XP-A-SB-2
June 2010
XP-A-SB-3
December 2010
24
XP-A-4-1
December 2010
XP-A-4-2
June 2011
XP-A-4-3
December 2011
XP-A-4-4
June 2012
XP-A-4-5
December 2012
XP-A-1A-2
December 2005
XP-A-1A-3
June 2006
XP-A-1A-4
December 2006
XP-A-1A-5
June 2007
XP-A-1A-6
December 2007
XP-A-1A-7
June 2008
XP-A-1A-8
December 2008
XP-A-1A-9
June 2009
XP-A-1A-10
December 2009
XP-A-1A-11
June 2010
XP-A-1A-12
December 2010
XP-A-1A-13
June 2011
XP-A-1A-14
December 2011
XP-A-1A-15
June 2012
XP-A-1A-16
December 2012
XP-A-MFL
December 2012
XP-A-M
December 2012
XP-A-J
December 2012
XP-B
December 2012
XP-C
December 2012
XP-D-1
December 2011
XP-D-2
June 2012
XP-D-3
December 2012
XP-E-1
December 2010
XP-E-2
June 2011
XP-E-3
December 2011
"Class X Strip Rate": With respect to any Class XC Component, for
any
Distribution Date, the related Class XC Strip Rate for such
Distribution Date;
and, with respect to any Class XP Component, for any Distribution
Date, the
related Class XP Strip Rate for such Distribution Date.
"Class Y Certificate": Any one of the Certificates with a "Class
Y-I"
designation on the face thereof, substantially in the form of
Exhibit A-7
attached hereto, and evidencing a proportionate interest in Grantor
Trust Y.
"Class Y Grantor Trust Assets": The assets of Grantor Trust Y.
"Closing Date": June 28, 2005.
25
"CMSA": The Commercial Mortgage Securities Association or any
successor organization.
"CMSA Advance Recovery Report": A report substantially in the form
of,
and containing the information called for in, the downloadable form
of the
"Advance Recovery Report" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be recommended by
the CMSA for
commercial mortgage-backed securities transactions generally.
"CMSA Bond Level File": The monthly report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"CMSA Bond Level File" available as of the Closing Date on the CMSA
Website, or
such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Collateral Summary File": The report substantially in the
form
of, and containing the information called for in, the downloadable
form of the
"Collateral Summary File" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Comparative Financial Status Report": The report
substantially
in the form of, and containing the information called for in, the
downloadable
form of the "Comparative Financial Status Report" available as of
the Closing
Date on the CMSA Website, or such other form for the presentation
of such
information and containing such additional information as may from
time to time
be approved by the CMSA for commercial mortgage securities
transactions
generally. In connection with preparing the CMSA Comparative
Financial Status
Report, the Master Servicer shall process (a) interim financial
statements
beginning with interim financial statements for the fiscal quarter
ending
September 30, 2005, and (b) annual financial statements beginning
with annual
financial statements for the 2005 fiscal year.
"CMSA Delinquent Loan Status Report": The report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Delinquent Loan Status Report" available as of the Closing
Date on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Financial File": The report substantially in the form of, and
containing the information called for in, the downloadable form of
the
"Financial File" available as of the Closing Date on the CMSA
Website, or such
other form for the presentation of such information and containing
such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
26
"CMSA Historical Liquidation Report": The report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "Historical Liquidation Report" available as of the Closing
Date on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report": A report substantially in the form of, and containing the
information
called for in, the downloadable form of the "Historical Loan
Modification and
Corrected Mortgage Loan Report" available as of the Closing Date on
the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Loan Level Reserve/LOC Report": The report substantially in
the
form of, and containing the information called for in, the
downloadable form of
the "CMSA Loan Level Reserve/LOC Report" available as of the
Closing Date on the
CMSA Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Loan Periodic Update File": The monthly report substantially
in
the form of, and containing the information called for in, the
downloadable form
of the "Loan Periodic Update File" available as of the Closing Date
on the CMSA
Website, or such other form for the presentation of such
information and
containing such additional information as may from time to time be
approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Loan Setup File": The report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "Loan
Setup File" available as of the Closing Date on the CMSA Website,
or such other
form for the presentation of such information and containing such
additional
information as may from time to time be approved by the CMSA for
commercial
mortgage securities transactions generally.
"CMSA NOI Adjustment Worksheet": A report substantially in the form
of, and containing the information called for in, the downloadable
form of the
"NOI Adjustment Worksheet" available as of the Closing Date on the
CMSA Website,
or such other form for the presentation of such information and
containing such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions and in any event, shall
present the
computations made in accordance with the methodology described in
such form to
"normalize" the full year net operating income and debt service
coverage numbers
used in the other reports required by this Agreement.
"CMSA Operating Statement Analysis": A report substantially in the
form of, and containing the information called for in, the
downloadable form of
the "Operating Statement Analysis Report" available as of the
Closing Date on
the CMSA Website or in such other form
27
for the presentation of such information and containing such
additional
information as may from time to time be approved by the CMSA for
commercial
mortgage-backed securities transactions generally.
"CMSA Property File": A report substantially in the form of, and
containing the information called for in, the downloadable form of
the "Property
File" available as of the Closing Date on the CMSA Website, or such
other form
for the presentation of such information and containing such
additional
information as may from time to time be approved by the CMSA for
commercial
mortgage securities transactions generally.
"CMSA REO Status Report": A report substantially in the form of,
and
containing the information called for in, the downloadable form of
the "REO
Status Report" available as of the Closing Date on the CMSA
Website, or in such
other form for the presentation of such information and containing
such
additional information as may from time to time be approved by the
CMSA for
commercial mortgage securities transactions generally.
"CMSA Servicer Watchlist": For any Determination Date, a report
substantially in the form of, and containing the information called
for in, the
downloadable form of the "Servicer Watchlist/Portfolio Review
Guidelines"
available as of the Closing Date on the CMSA Website, or in such
other final
form for the presentation of such information and containing such
additional
information as may from time to time be approved by the CMSA for
commercial
mortgage securities transactions generally.
"CMSA Website": The website maintained by the CMSA with an address,
as
of the Closing Date, of "www.cmbs.org."
"Code": The Internal Revenue Code of 1986, as amended, and
applicable
temporary or final regulations of the U.S. Department of the
Treasury
promulgated thereunder.
"Collection Period": With respect to any Distribution Date or
P&I
Advance Date, the period that begins on the day immediately
following the
Determination Date in the calendar month preceding the month in
which such
Distribution Date or such P&I Advance Date, as the case may be,
occurs (or, in
the case of the initial Distribution Date and the initial P&I
Advance Date,
commencing on the day after the related Cut-off Date) and ending on
and
including the Determination Date in the month in which such
Distribution Date or
such P&I Advance Date, as the case may be, occurs.
"Commission": The Securities and Exchange Commission or any
successor
agency.
"Component Notional Amount": With respect to each Class X Component
and any date of determination, an amount equal to the then REMIC I
Principal
Balance of its Corresponding REMIC I Regular Interest.
"Controlling Class": As of any date of determination, the most
subordinate (based on the payment priorities of Section 4.01(a))
outstanding
Class of Sequential Pay Certificates, that has a Class Principal
Balance that is
greater than 25% of the Original Class
28
Principal Balance thereof; provided, however, that if no Class of
Sequential Pay
Certificates has a Class Principal Balance that satisfies such
requirement, then
the Controlling Class shall be the most subordinate (based on the
payment
priorities of Section 4.01(a)) outstanding Class of Sequential Pay
Certificates
that has a Class Principal Balance greater than zero. For purposes
of
determining, and exercising the rights of, the Controlling Class,
the Senior
Class A Certificates shall be deemed a single Class of
Certificates, and the
Class A-M and Class A-MFL Certificates shall be deemed a single
Class of
Certificates.
"Controlling Class Representative": As defined in Section 3.25(a).
"Corporate Trust Office": The corporate trust office of the Trustee
at
which at any particular time its corporate trust business with
respect to this
Agreement shall be administered, which office at the date of the
execution of
this Agreement is located at 135 South LaSalle Street, Suite 1625,
Chicago,
Illinois 60603, Attention: Global Securities and Trust Services
Group--Citigroup
Commercial Mortgage Trust, Series 2005-C3.
"Corrected Loan": Any Serviced Loan that had been a Specially
Serviced
Loan but has ceased to be a Specially Serviced Loan in accordance
with the
definition of "Specially Serviced Loan" (other than by reason of a
Liquidation
Event or the related Mortgaged Property becoming an REO Property).
"Corrected Mortgage Loan": A Mortgage Loan that is a Corrected
Loan.
"Corresponding REMIC I Regular Interest": With respect to: (a) any
Class of Principal Balance Certificates, the REMIC I Regular
Interest that has
an alphabetic or alphanumeric, as applicable, designation that is
the same as
the alphabetic or alphanumeric, as the case may be, designation for
such Class
of Principal Balance Certificates (provided that each REMIC I
Regular Interest
with a designation that begins "A-1-" will be a Corresponding REMIC
I Regular
Interest with respect to the Class A-1 Certificates, each REMIC I
Regular
Interest with a designation that begins "A-2-" will be a
Corresponding REMIC I
Regular Interest with respect to the Class A-2 Certificates, each
REMIC I
Regular Interest with a designation that begins "A-3-" will be a
Corresponding
REMIC I Regular Interest with respect to the Class A-3
Certificates, each REMIC
I Regular Interest with a designation that begins "A-SB-" will be a
Corresponding REMIC I Regular Interest with respect to the Class
A-SB
Certificates, each REMIC I Regular Interest with a designation that
begins
"A-4-" will be a Corresponding REMIC I Regular Interest with
respect to the
Class A-4 Certificates, each REMIC I Regular Interest with a
designation that
begins "A-1A-" will be a Corresponding REMIC I Regular Interest
with respect to
the Class A-1A Certificates, each REMIC I Regular Interest with a
designation
that begins "D-" will be a Corresponding REMIC I Regular Interest
with respect
to the Class D Certificates, and each REMIC I Regular Interest with
a
designation that begins "E-" will be a Corresponding REMIC I
Regular Interest
with respect to the Class E Certificates); (b) any Class XC
Component, the REMIC
I Regular Interest that has an alphabetic or alphanumeric, as
applicable,
designation that, when preceded by "XC-", is the same as the
alphabetic or
alphanumeric, as the case may be, designation for such Class XC
Component; (c)
any Class XP Component, the REMIC II Regular Interest that has an
alphabetic or
alphanumeric, as applicable, designation that, when preceded by
"XP-", is the
same as the alphabetic or alphanumeric, as the case may be,
designation for such
29
Class XP Component; and (d) the Class A-MFL REMIC II Regular
Interest, REMIC I
Regular Interest A-MFL.
"Corresponding Class XP Component": With respect to any Class XC
Component, any Class XP Component that has the same Corresponding
REMIC I
Regular Interest as such Class XC Component. If the Corresponding
REMIC I
Regular Interest for any Class XC Component is not also a
Corresponding REMIC I
Regular Interest for a Class XP Component, then such Class XC
Component shall
not have a Corresponding Class XP Component.
"Crossed Group": With respect to any Mortgage Loan, such Mortgage
Loan
and all other Mortgage Loans that are cross-collateralized and
cross-defaulted
with such Mortgage Loan.
"Crossed Loan": A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
"Crossed Loan Repurchase Criteria": (i) The Debt Service Coverage
Ratio for all remaining related Crossed Loans for the four calendar
quarters
immediately preceding the repurchase or substitution is not less
than the Debt
Service Coverage Ratio for all such related Crossed Loans,
including the
affected Crossed Loan, for the four calendar quarters immediately
preceding the
repurchase or substitution; (ii) the Loan-to-Value Ratio for any
remaining
related Crossed Loans determined at the time of repurchase or
substitution based
upon an Appraisal obtained by the Special Servicer at the expense
of the related
Mortgage Loan Seller is not greater than the Loan-to-Value Ratio
for all such
related Crossed Loans, including the affected Crossed Loan,
determined at the
time of repurchase or substitution based upon an Appraisal obtained
by the
Special Servicer at the expense of the related Mortgage Loan
Seller; and (iii)
the Mortgage Loan Seller, at its expense, shall have furnished the
Trustee with
an Opinion of Counsel that the repurchase of or substitution for a
Crossed Loan,
including, without limitation, any modification relating to such
repurchase or
substitution, shall not cause an Adverse REMIC Event.
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage
Files, which
Person shall not be the Depositor, a Mortgage Loan Seller or an
Affiliate of the
Depositor or a Mortgage Loan Seller. If no such custodian has been
appointed or
if such custodian has been so appointed, but the Trustee shall have
terminated
such appointment, then the Trustee shall be the Custodian.
"Cut-off Date": Individually and collectively, as the context may
require: with respect to all but one of the Mortgage Loans, the
related Due Date
of each such Mortgage Loan in June 2005, and in the case of one
Mortgage Loan
originated in May 2005 and having its first Due Date in July 2005,
June 11,
2005.
"Cut-off Date Balance": With respect to any Serviced Loan, the
outstanding principal balance of such Serviced Loan as of the
Cut-off Date,
after application of all unscheduled payments of principal received
on or before
such date and the principal component of all Periodic Payments due
on or before
such date, whether or not received.
30
"Debt Service Coverage Ratio": With respect to any Serviced Loan,
as
of any date of determination, the ratio of (x) the annualized Net
Cash Flow
(before payment of any debt service on such Serviced Loan)
generated by the
related Mortgaged Property during the most recently ended period of
not less
than six months and not more than twelve months for which financial
statements,
if available (whether or not audited) have been received by or on
behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the
Master Servicer
or the Special Servicer (following the Closing Date), to (y) twelve
times the
amount of the Periodic Payment in effect for such Serviced Loan
(plus, in the
case of any B-Note Loan, the Periodic Payment in effect for the
related A-Note
Mortgage Loan) as of such date of determination.
"Defaulted Mortgage Loan": A Mortgage Loan (i) that (A) is
delinquent
60 days or more in respect to a Periodic Payment (not including the
Balloon
Payment) or (B) is 60 days or more delinquent in respect of its
Balloon Payment
unless the Master Servicer has, on or prior to the 60th day after
the Due Date
of such Balloon Payment, received written evidence from an
institutional lender
of such lender's binding commitment to refinance such Mortgage Loan
within 120
days after the Due Date of such Balloon Payment (provided that, if
such
refinancing does not occur during such time specified in the
commitment, the
subject Mortgage Loan will immediately become a Defaulted Mortgage
Loan), in
either case such delinquency to be determined without giving effect
to any grace
period permitted by the related Mortgage or Mortgage Note and
without regard to
any acceleration of payments under the related Mortgage and
Mortgage Note, or
(ii) as to which the Master Servicer or Special Servicer has, by
written notice
to the related Mortgagor, accelerated the maturity of the
indebtedness evidenced
by the related Mortgage Note.
"Defeasance Collateral": With respect to any Defeasance Loan, the
United States government obligations required or permitted to be
pledged in lieu
of prepayment pursuant to the terms thereof.
"Defeasance Loan": Any Mortgage Loan identified as a Defeasance
Loan
on the Mortgage Loan Schedule which permits or requires the related
Mortgagor
(or permits the holder of such Mortgage Loan to require the related
Mortgagor)
to pledge Defeasance Collateral to such holder in lieu of
prepayment. Each
B-Note Loan shall also be a Defeasance Loan.
"Deficient Valuation": With respect to any Serviced Loan, a
valuation
by a court of competent jurisdiction of the Mortgaged Property in
an amount less
than the then outstanding principal balance of the Serviced Loan,
which
valuation results from a proceeding initiated under the Bankruptcy
Code.
"Definitive Certificate": As defined in Section 5.03(a).
"Definitive Non-Registered Certificate": Any Non-Registered
Certificate that is a Definitive Certificate.
"Depositor": Citigroup Commercial Mortgage Securities Inc. or its
successor in interest.
"Depositor's Retained Amount": As defined in Section 3.27(b).
31
"Depository": The Depository Trust Company, or any successor
Depository hereafter named as contemplated by Section 5.03(c). The
nominee of
the initial Depository for purposes of registering those
Certificates that are
to be Book-Entry Certificates, is Cede & Co. The Depository
shall at all times
be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform
Commercial Code of the State of New York and a "clearing agency"
registered
pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the
Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date": The 11th day of each month, or if such 11th
day
is not a Business Day, the immediately succeeding Business Day,
commencing in
July 2005.
"Directly Operate": With respect to any REO Property, the
furnishing
or rendering of services to the tenants thereof, the management of
such REO
Property, the holding of such REO Property primarily for sale or
lease or the
performance of any construction work thereon, in each case other
than through an
Independent Contractor; provided, however, that the Trustee (or the
Special
Servicer or any Sub-Servicer on behalf of the Trustee) shall not be
considered
to Directly Operate an REO Property solely because the Trustee (or
the Special
Servicer or any Sub-Servicer on behalf of the Trustee) establishes
rental terms,
chooses tenants, enters into or renews leases, deals with taxes and
insurance,
or makes decisions as to repairs or capital expenditures with
respect to such
REO Property.
"Discount Rate": With respect to any prepaid Mortgage Loan or REO
Mortgage Loan for purposes of allocating any Yield Maintenance
Charge or
Prepayment Premium received thereon or with respect thereto among
the respective
Classes of the Principal Balance Certificates (other than any
Excluded Class
thereof) and the Class A-MFL REMIC II Regular Interest, the
"Discount Rate"
shall be determined as specified in the related loan documents for
the purposes
of calculating the subject Yield Maintenance Charge or Prepayment
Premium.
"Disqualified Organization": Any of the following: (i) the United
States or a possession thereof, any State or any political
subdivision thereof,
or any agency or instrumentality of any of the foregoing (other
than an
instrumentality which is a corporation if all of its activities are
subject to
tax and, except for FHLMC, a majority of its board of directors is
not selected
by any such governmental unit), (ii) a foreign government,
international
organization, or any agency or instrumentality of either of the
foregoing, (iii)
any organization (except certain farmers' cooperatives described in
Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code
(unless such organization is subject to the tax imposed by Section
511 of the
Code on unrelated business taxable income), (iv) rural electric and
telephone
cooperatives described in Section 1381 of the Code or (v) any other
Person so
designated by the Trustee or the Certificate Registrar based upon
an Opinion of
Counsel (which shall not be an expense of the Trustee) that the
holding of an
Ownership Interest in a Class R Certificate by such Person may
cause the Trust
Fund or any Person having an Ownership Interest in any Class of
Certificates,
other than such Person, to incur a liability for any federal tax
imposed under
the Code that would not otherwise be imposed but for the Transfer
of an
32
Ownership Interest in a Class R Certificate to such Person. The
terms "United
States," "State" and "international organization" shall have the
meanings set
forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of
Regular Certificates or the Class A-MFL REMIC II Regular Interest
for any
Distribution Date, the Accrued Certificate Interest in respect of
such Class of
Certificates or the Class A-MFL REMIC II Regular Interest, as the
case may be,
for such Distribution Date, reduced (to not less than zero) by the
sum of: (i)
the portion of any Net Aggregate Prepayment Interest Shortfall for
such
Distribution Date allocated to such Class of Regular Certificates
or the Class
A-MFL REMIC II Regular Interest, as the case may be, in accordance
with Section
4.04(f); and (ii) except in the case of a Class of Class X
Certificates, the
portion of any Mortgage Deferred Interest allocated to such Class
of Regular
Certificates or the Class A-MFL REMIC II Regular Interest, as the
case may be,
on such Distribution Date in accordance with Section 4.04(d).
"Distribution Account": The segregated account or accounts created
and
maintained by the Trustee on behalf of the Certificateholders
(exclusive of the
Holders of the Class Y Certificates) pursuant to Section 3.04(b)
which shall be
entitled "LaSalle Bank National Association, as Trustee, in trust
for the
registered holders of Citigroup Commercial Mortgage Trust 2005-C3,
Commercial
Mortgage Pass-Through Certificates, Series 2005-C3."
"Distribution Date": With respect to any Determination Date, the
fourth Business Day following such Determination Date.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Serviced Loan on or prior to
its
Stated Maturity Date, the day of the month set forth in the related
Mortgage
Note on which each Periodic Payment on such Serviced Loan is
scheduled to be
first due; (ii) any Serviced Loan after its Stated Maturity Date,
the day of the
month set forth in the related Mortgage Note on which each Periodic
Payment on
such Serviced Loan had been scheduled to be first due; and (iii)
any REO Loan,
the day of the month set forth in the related Mortgage Note on
which each
Periodic Payment on the related Serviced Loan had been scheduled to
be first
due.
"EDGAR": The Commission's Electronic Data Gathering, Analysis and
Retrieval system.
"Eligible Account": Any of (i) an account maintained with a federal
or
state chartered depository institution or trust company, and (A)
with respect to
deposits held for 30 days or more in such account, the long-term
deposit or
unsecured debt obligations of which are rated at least "Aa3" by
Moody's (if then
rated by Moody's) and "AA-" by S&P (or "A-" provided the
short-term unsecured
debt obligations are rated at least "A-1" by S&P) (or, with
respect to either
such Rating Agency, such lower rating as will not result in
qualification,
downgrading or withdrawal of the ratings then assigned to the
Certificates, as
evidenced in writing by the applicable Rating Agency), at any time
such funds
are on deposit therein, or (B)
33
with respect to deposits held for less than 30 days in such
account, the
short-term deposits of which are rated at least "P-1" by Moody's
(if then rated
by Moody's) and "A-1" by S&P (or, with respect to either such
Rating Agency,
such lower rating as will not result in qualification, downgrading
or withdrawal
of the ratings then assigned to the Certificates as evidenced in
writing by the
applicable Rating Agency), at any time such funds are on deposit
therein, (ii)
in the case of the IXIS Mortgage Loans, an account or accounts
maintained with
PNC Bank, National Association so long as PNC Bank, National
Association (X) has
a long-term unsecured debt rating of at least "A-" and a short-term
rating of at
least "A-1" from S&P and (Y) has a long-term unsecured debt
rating of at least
"A1" and a short-term rating of at least "P-1" from Moody's, or
(iii) a
segregated trust account or accounts maintained with a federal or
state
chartered depository institution or trust company acting in its
fiduciary
capacity, which, in the case of a state chartered depository
institution or
trust company, is subject to regulations regarding fiduciary funds
on deposit
therein substantially similar to 12 CFR Section 9.10(b), having in
either case a
combined capital and surplus of at least $50,000,000 and subject to
supervision
or examination by federal or state authority, or the use of such
account would
not, in and of itself, cause a qualification, downgrading or
withdrawal of the
then-current rating assigned to any Class of Certificates, as
confirmed in
writing by each Rating Agency.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, (i) Chapter 5 of the FNMA Multifamily
Guide or any
successor provisions covering the same subject matter in the case
of a Specially
Serviced Loan as to which the related Mortgaged Property is
multifamily property
or (ii) the American Society for Testing and Materials in the case
of Specially
Serviced Loan as to which the related Mortgaged Property is not
multifamily
property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Payment": Any payment received by the Master Servicer or
the
Special Servicer for the account of any Mortgagor for application
toward the
payment of real estate taxes, assessments, insurance premiums,
ground rents (if
applicable) and other similar items in respect of the related
Mortgaged
Property.
"Event of Default": One or more of the events described in Section
7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Exchange Act Reports": Forms 8-K and 10-K.
"Excluded Class": Any Class of Principal Balance Certificates other
than the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates,
Class A-SB Certificates, Class A-4 Certificates, Class A-1A
Certificates, Class
A-M Certificates, Class A-J Certificates, Class B Certificates,
Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates,
Class G Certificates and Class H Certificates.
"Exemption": Department of Labor Prohibited Transaction Exemption
("PTE") 91-23, as amended from time to time, or any successor
thereto.
34
"Exemption-Favored Party": Any of (i) Citigroup Global Markets
Inc.,
(ii) any Person directly or indirectly, through one or more
intermediaries,
controlling, controlled by or under common control with Citigroup
Global Markets
Inc., and (iii) any member of any underwriting syndicate or selling
group of
which any Person described in clauses (i) and/or (ii) is a manager
or co-manager
with respect to a Class of Investment Grade Certificates.
"FASB 140": The Financial Accounting Standards Board's Statement
No.
140, entitled "Accounting for Transfers and Servicing of Financial
Assets and
Extinguishment of Liabilities", issued in September 2002.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any Specially Serviced Loan or REO
Property (other than
a Mortgage Loan or REO Property, as the case may be, that was
purchased or
replaced by any of the Mortgage Loan Sellers, pursuant to the
related Mortgage
Loan Purchase Agreement, by a related B-Noteholder pursuant to the
related A/B
Intercreditor Agreement, or by the Master Servicer, the Special
Servicer or the
Majority Controlling Class Certificateholder pursuant to Section
9.01 or that
was acquired by the Certificateholders (exclusive of the Class R
and Class Y
Certificateholders) in exchange for their Certificates pursuant to
Section 9.01)
that there has been a recovery of all Insurance Proceeds,
Liquidation Proceeds,
REO Revenues and other payments or recoveries that the Special
Servicer has
determined, in accordance with the Servicing Standard, will be
ultimately
recoverable (without regard to any Carolina Place Threshold Event
Collateral).
"Floating Rate Account": A segregated custodial account or accounts
or
subaccount of the Distribution Account created and maintained by
the Trustee,
pursuant to Section 3.04(i), in trust for the Class A-MFL
Certificateholders and
Swap Counterparty, as their interests may appear, which shall be
entitled
"LaSalle Bank National Association, as Trustee, in trust for the
registered
holders of Citigroup Commercial Mortgage Trust 2005-C3, Commercial
Mortgage
Pass-Through Certificates, Series 2005-C3, Class A-MFL, and [NAME
OF SWAP
COUNTERPARTY], as their interests may appear, Floating Rate
Account". Any such
account or subaccount shall be an Eligible Account or a subaccount
of an
Eligible Account.
"Fiscal Agent": ABN AMRO Bank N.V., in its capacity as fiscal agent
hereunder, or any successor fiscal agent appointed as herein
provided.
"FNMA": Federal National Mortgage Association or any successor.
"Form 8-K": A Current Report on Form 8-K and/or any successor or
equivalent forms adopted by the Commission.
"Form 10-K": An Annual Report on Form 10-K and/or any successor or
equivalent forms adopted by the Commission.
35
"Gain-on-Sale Proceeds": With respect to any Specially Serviced
Mortgage Loan or REO Property, the excess, if any, of (i) any
Liquidation
Proceeds with respect to the subject Mortgage Loan or REO Property,
as the case
may be (net of any related Liquidation Expenses and, in the case of
any A-Note
Mortgage Loan or the related A/B REO Property, further net of any
portion of
such Liquidation Proceeds payable to the related B-Noteholder(s)),
over (ii) the
Purchase Price for such Mortgage Loan or the related REO Mortgage
Loan, as the
case may be, on the date on which such Liquidation Proceeds were
received.
"Gain-on-Sale Reserve Account": A segregated custodial account or
accounts or subaccount of the Distribution Account created and
maintained by the
Trustee pursuant to Section 3.04(f) on behalf of the
Certificateholders, which
shall be entitled "LaSalle Bank National Association, as Trustee,
in trust for
the registered holders of Citigroup Commercial Mortgage Trust
2005-C3,
Commercial Mortgage Pass-Through Certificates, Series 2005-C3." Any
such account
shall be an Eligible Account or a subaccount of an Eligible
Account.
"Global Certificate": With respect to any Class of Book-Entry
Non-Registered Certificates, either the related Rule 144A Global
Certificate or
the Regulation S Global Certificate.
"Grantor Trust": Either of Grantor Trust A-MFL or Grantor Trust Y,
as
applicable.
"Grantor Trust A-MFL": The portion of the Trust Fund consisting of
(i)
the Class A-MFL REMIC II Regular Interest and, except for the
Depositor's
Retained Amount, distributions thereon, (ii) the Swap Agreement and
payments by
the Swap Counterparty thereunder and (iii) the Floating Rate
Account, intended
to be treated as a "grantor trust" within the meaning of the
Grantor Trust
Provisions.
"Grantor Trust Assets": With respect to Grantor Trust A-MFL, the
Class
A-MFL Grantor Trust Assets; and, with respect to Grantor Trust Y,
the Class Y
Grantor Trust Assets.
"Grantor Trust Y": The portion of the Trust Fund consisting of (i)
any
Additional Interest with respect to the ARD Mortgage Loans after
their
respective Anticipated Repayment Dates and (ii) amounts held from
time to time
in the Additional Interest Account that represent Additional
Interest, intended
to be treated as a "grantor trust" within the meaning of the
Grantor Trust
Provisions.
"Grantor Trust Provisions": Subpart E of Part I of subchapter J of
the
Code and Treasury regulation section 301.7701-4(c).
"Ground Lease": With respect to any Serviced Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged
Property or space
lease within such Mortgaged Property, the lease agreement creating
such
leasehold interest.
"Group 1 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage
Loan Schedule as belonging to Loan Group No. 1.
36
"Group 2 Mortgage Loan": Any Mortgage Loan identified on the
Mortgage
Loan Schedule as belonging to Loan Group No. 2.
"Hazardous Materials": Any dangerous, toxic or hazardous
pollutants,
chemicals, wastes, or substances, including, without limitation,
those so
identified pursuant to CERCLA or any other federal, state or local
environmental
related laws and regulations now existing or hereafter enacted, and
specifically
including, without limitation, asbestos and asbestos-containing
materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and
petroleum products
and urea formaldehyde.
"Holder": A Certificateholder.
"Impound Reserve": As defined in Section 3.16(c) hereof.
"Independent": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Depositor, the
Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Controlling
Class
Representative (and, with respect to the Carolina Place Mortgage
Loan and any
A/B Loan Combination, the Class CP Representative and the related
B-Noteholder(s), respectively), the Trustee, the Fiscal Agent and
any and all
Affiliates thereof, (ii) does not have any direct financial
interest in or any
material indirect financial interest in any of the Depositor, the
Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Controlling
Class
Representative (or, with respect to the Carolina Place Mortgage
Loan and any A/B
Loan Combination, the Class CP Representative and the related
B-Noteholder(s),
respectively), the Trustee, the Fiscal Agent or any Affiliate
thereof, and (iii)
is not connected with the Depositor, the Mortgage Loan Sellers, the
Master
Servicer, the Special Servicer, the Controlling Class
Representative (or, with
respect to the Carolina Place Mortgage Loan and any A/B Loan
Combination, the
Class CP Representative and the related B-Noteholder(s),
respectively), the
Trustee, the Fiscal Agent or any Affiliate thereof as an officer,
employee,
promoter, underwriter, trustee, partner, director or Person
performing similar
functions; provided, however, that a Person shall not fail to be
Independent of
the Depositor, the Mortgage Loan Sellers, the Master Servicer, the
Special
Servicer, the Controlling Class Representative (or, with respect to
the Carolina
Place Mortgage Loan and any A/B Loan Combination, the Class CP
Representative
and the related B-Noteholder(s), respectively), the Trustee, the
Fiscal Agent or
any Affiliate thereof merely because such Person is the beneficial
owner of 1%
or less of any class of securities issued by the Depositor, the
Mortgage Loan
Sellers, the Master Servicer, the Special Servicer, the Controlling
Class
Representative (or, with respect to the Carolina Place Mortgage
Loan and any A/B
Loan Combination, the Class CP Representative and the related
B-Noteholder(s),
respectively), the Trustee, the Fiscal Agent or such Affiliate
thereof, as the
case may be.
"Independent Appraiser": An Independent professional real estate
appraiser who is a member in good standing of the Appraisal
Institute, and, if
the State in which the subject Mortgaged Property is located
certifies or
licenses appraisers, certified or licensed in such State, and in
each such case,
who has a minimum of five years experience in the subject property
type and
market.
37
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to a REMIC Pool within the meaning of
Section 856(d)(3)
of the Code if such REMIC Pool were a real estate investment trust
(except that
the ownership test set forth in that Section shall be considered to
be met by
any Person that owns, directly or indirectly, 35 percent or more of
any Class of
Certificates, or such other interest in any Class of Certificates
as is set
forth in an Opinion of Counsel, which shall be at no expense to the
Master
Servicer, the Special Servicer, the Trustee or the Trust Fund,
delivered to the
Trustee and the Master Servicer), so long as such REMIC Pool does
not receive or
derive any income from such Person; provided that the relationship
between such
Person and such REMIC Pool is at arm's length, all within the
meaning of
Treasury regulations section 1.856-4(b)(5), or any other Person
upon receipt by
the Trustee of an Opinion of Counsel, which shall be at no expense
to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, to
the effect
that the taking of any action in respect of any REO Property by
such Person,
subject to any conditions therein specified, that is otherwise
herein
contemplated to be taken by an Independent Contractor will not
cause such REO
Property to cease to qualify as "foreclosure property" within the
meaning of
Section 860G(a)(8) of the Code, or cause any income realized in
respect of such
REO Property to fail to qualify as Rents from Real Property.
"Initial Purchaser": Citigroup Global Markets Inc. or its successor
in
interest.
"Institutional Accredited Investor" or "IAI": An "accredited
investor"
as defined in any of paragraphs (1), (2), (3) and (7) of Rule
501(a) under the
Securities Act or any entity in which all of the equity owners come
within such
paragraphs.
"Insurance Policy": With respect to any Serviced Loan, any hazard
insurance policy, flood insurance policy, title policy or other
insurance policy
that is maintained from time to time in respect of such Serviced
Loan or the
related Mortgaged Property.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to
the
extent such proceeds are not applied to the restoration of the
related Mortgaged
Property, released to the Mortgagor, or any tenants or ground
lessors, as the
case may be, pursuant to the terms of the related Mortgage or
lease, in
accordance with the Servicing Standard.
"Insured Environmental Event": As defined in Section 3.07(d).
"Interest Accrual Period": With respect to each Class of Regular
Certificates, each Class X Component, the Class A-MFL REMIC II
Regular Interest,
each REMIC I Regular Interest and each Loan REMIC Regular Interest,
for any
Distribution Date, the calendar month immediately preceding the
calendar month
in which such Distribution Date occurs. Notwithstanding the
foregoing, each
Interest Accrual Period is deemed to consist of 30 days for
purposes of
calculating interest on the Regular Certificates, the Class X
Components, the
Class A-MFL REMIC II Regular Interest, the REMIC I Regular
Interests and the
Loan REMIC Regular Interests. For purposes of determining Class
A-MFL Interest
Distribution Amounts and Class A-MFL Floating Swap Payments, for
any
Distribution Date and any Class A-MFL Swap Payment Date related
thereto based
upon the confirmation under the Swap Agreement, the Interest
Accrual Period will
begin on and include the preceding Distribution Date (or, in the
case
38
of the first Distribution Date, will begin on and include the
Closing Date) and
will end on the calendar day immediately preceding the subject
Distribution
Date; provided that, if a Class A-MFL Distribution Conversion is in
effect with
respect to the subject Distribution Date, then the Interest Accrual
Period
applicable to the Class A-MFL Interest Distribution Amount for such
Distribution
Date will be the same as the Interest Accrual Period with respect
to the Class
A-MFL REMIC II Regular Interest for such Distribution Date.
"Interest Reserve Account": The segregated account created and
maintained by the Trustee pursuant to Section 3.04(c) on behalf of
the
Certificateholders, which shall be entitled "LaSalle Bank National
Association,
as Trustee, on behalf of and in trust for the registered holders of
Citigroup
Commercial Mortgage Trust 2005-C3, Commercial Mortgage Pass-Through
Certificates, Series 2005-C3."
"Interest Reserve Amount": With respect to each Interest Reserve
Mortgage Loan and Interest Reserve REO Mortgage Loan for each
Distribution Date
that occurs in February of each year and in January of each year
that is not a
leap year, an amount equal to one day's interest at the related
Mortgage Rate on
the related Stated Principal Balance as of the Due Date in the
month in which
such Distribution Date occurs (but prior to the application of any
amounts owed
on such Due Date), to the extent a Periodic Payment is collected in
respect
thereof as of the Determination Date immediately preceding such
Distribution
Date or a P&I Advance is made in respect thereof for such Due
Date as of such
Distribution Date.
"Interest Reserve Mortgage Loan": Each Mortgage Loan that is an
Actual/360 Mortgage Loan.
"Interest Reserve REO Mortgage Loan": An REO Mortgage Loan that
relates to an Interest Reserve Mortgage Loan.
"Interested Person": The Depositor, any Mortgage Loan Seller, the
Master Servicer, the Special Servicer, any B-Noteholder (but only
with respect
to the related A-Note Mortgage Loan), any Independent Contractor
hired by the
Special Servicer, any Holder of a Certificate or any Affiliate of
any such
Person.
"Internet Website": The Internet Websites maintained by the Trustee
and, if applicable, the Master Servicer, initially located at
"www.etrustee.net"
and "www.wachovia.com", respectively, or such other address as
provided by the
Trustee or the Master Servicer, as the case may be, to the parties
hereto from
time to time.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade Certificate": As of any date of determination, a
Certificate that is rated in one of the four highest generic rating
categories
by at least one Rating Agency.
"IRS": The Internal Revenue Service or any successor agency.
"Issue Price": With respect to each Class of Certificates, the
"issue
price" as defined in the Code and Treasury regulations promulgated
thereunder.
39
"IXIS": IXIS Real Estate Capital Inc., a New York corporation, or
its
successor in interest.
"IXIS Mortgage Loan Purchase Agreement": That certain mortgage loan
purchase agreement, dated as of June 15, 2005, between the
Depositor and IXIS
and relating to the transfer of the IXIS Mortgage Loans to the
Depositor.
"IXIS Mortgage Loans": Each of the Mortgage Loans transferred and
assigned to the Depositor pursuant to the IXIS Mortgage Loan
Purchase Agreement
and each Qualified Substitute Mortgage Loan delivered in
replacement thereof in
accordance with this Agreement and the IXIS Mortgage Loan Purchase
Agreement.
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon during any Collection Period, other than Penalty
Interest,
whether as payments, Insurance Proceeds, Liquidation Proceeds or
otherwise,
which represent late collections of the principal and/or interest
portions of a
Periodic Payment (other than a Balloon Payment) or an Assumed
Periodic Payment
in respect of such Mortgage Loan due or deemed due on a Due Date in
a previous
Collection Period, and not previously recovered. With respect to
any REO
Mortgage Loan, all amounts received in connection with the related
REO Property
during any Collection Period, whether as Insurance Proceeds,
Liquidation
Proceeds, REO Revenues or otherwise, which represent late
collections of the
principal and/or interest portions of a Periodic Payment (other
than a Balloon
Payment) or an Assumed Periodic Payment in respect of the
predecessor Mortgage
Loan or of an Assumed Periodic Payment in respect of such REO
Mortgage Loan due
or deemed due on a Due Date in a previous Collection Period and not
previously
recovered.
"LIBOR": The rate specified in Section 1.03(a) or the rate
calculated
by the Trustee in accordance with Section 1.03(b), as applicable
under the
circumstances.
"LIBOR Business Day": Any day on which commercial banks are open
for
general business (including dealings in foreign exchange and
foreign currency
deposits) in London, England.
"LIBOR Determination Date": For purposes of calculating LIBOR in
any
particular calendar month subsequent to June 2005, the second LIBOR
Business Day
prior to the Distribution Date in such calendar month; provided
that, to the
extent that the calculation of LIBOR in accordance with Section
1.03(b) requires
a determination made as of New York City time, the subject LIBOR
Determination
Date must also be a day on which commercial banks are open for
general business
(including dealings in foreign exchange and foreign currency
deposits) in New
York, New York.
"Liquidation Event": With respect to any Serviced Loan, any of the
following events: (i) such Serviced Loan is paid in full; (ii) a
Final Recovery
Determination is made with respect to such Serviced Loan; (iii) if
such Serviced
Loan is a Mortgage Loan, then it is (A) repurchased or replaced by
a Mortgage
Loan Seller pursuant to the applicable Mortgage Loan Purchase
Agreement, (B)
purchased by the Master Servicer, the Special Servicer or the
Majority
40
Controlling Class Certificateholder, or is acquired by the
Certificateholders
(exclusive of the Class R and Class Y Certificateholders) in
exchange for their
Certificates, in each case pursuant to Section 9.01, or (C)
purchased by the
Majority Controlling Class Certificateholder, the Majority Class CP
Certificateholder(s), the Special Servicer or any assignee of the
foregoing
pursuant to Section 3.18; (iv) if such Serviced Loan is an A-Note
Mortgage Loan,
then it is purchased by a related B-Noteholder pursuant to the
related A/B
Intercreditor Agreement or (v) such Serviced Loan is purchased by
any related
mezzanine lender pursuant to any applicable intercreditor,
co-lender or similar
agreement. With respect to any REO Property (and the related REO
Loan(s)), any
of the following events: (i) a Final Recovery Determination is made
with respect
to such REO Property; (ii) such REO Property is purchased by the
Master
Servicer, the Special Servicer or the Majority Controlling Class
Certificateholder, or is acquired by the Certificateholders
(exclusive of the
Class R and Class Y Certificateholders) in exchange for their
Certificates, in
each case pursuant to Section 9.01; or (iii) such REO Property is
sold pursuant
to Section 3.18.
"Liquidation Fee": With respect to each Specially Serviced Loan,
REO
Mortgage Loan and REO B-Note Loan, the fee payable to the Special
Servicer out
of certain related recoveries pursuant to the third paragraph of
Section
3.11(c).
"Liquidation Fee Rate": 1.00%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the
Special
Servicer in connection with: (i) the taking of all or a part of a
Mortgaged
Property or REO Property by exercise of the power of eminent domain
or
condemnation, subject, however, to the rights of any tenants and
ground lessors,
as the case may be, and the rights of the Mortgagor under the terms
of the
related Mortgage; (ii) the liquidation of a Mortgaged Property or
other
collateral constituting security for a defaulted Serviced Loan,
through
trustee's sale, foreclosure sale, REO Disposition or otherwise
(which does not
include voluntary Principal Prepayments), exclusive of any portion
thereof
required to be released to the related Mortgagor in accordance with
applicable
law and the terms and conditions of the related Mortgage Note and
Mortgage;
(iii) the realization upon any deficiency judgment obtained against
a Mortgagor;
(iv) the purchase of a Defaulted Mortgage Loan by the Majority
Controlling Class
Certificateholder, the Majority Class CP Certificateholder(s), the
Special
Servicer or any assignee thereof pursuant to Section 3.18; (v) the
repurchase or
replacement of a Mortgage Loan by a Mortgage Loan Seller pursuant
to the
applicable Mortgage Loan Purchase Agreement; (vi) the purchase of a
Mortgage
Loan or REO Property by the Master Servicer, the Special Servicer
or the
Majority Controlling Class Certificateholder, or the acquisition of
a Mortgage
Loan by the Certificateholders (exclusive of the Class R and Class
Y
Certificateholders) in exchange for their Certificates, in each
case pursuant to
Section 9.01; (vii) the purchase of an A-Note Mortgage Loan by a
related
B-Noteholder pursuant to a related A/B Intercreditor Agreement;
(viii) the
purchase of a Serviced Loan by a mezzanine lender pursuant to any
applicable
intercreditor, co-lender or similar agreement; (ix) except for
purposes of
Section 3.11, any Carolina Place Threshold Event Collateral
transferred to the
Certificate Account, subject to and in accordance with the terms of
Section
6.12(f), to cover losses and expenses with respect to the Carolina
Place
Mortgage Loan or any successor REO Mortgage Loan with respect
thereto; or (x)
except for purposes of Section
41
3.11, any amounts withdrawn from a Special Reserve Account or drawn
on a letter
of credit in accordance with Section 2.02(c), that are deposited in
the
Certificate Account.
"Loan Group": Either Loan Group No. 1 or Loan Group No. 2, as
applicable.
"Loan Group No. 1": Collectively, all of the Mortgage Loans that
are
Group 1 Mortgage Loans and any successor REO Mortgage Loans with
respect
thereto.
"Loan Group No. 1 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the related Net
Available
Distribution Amount attributable to Loan Group No. 1.
"Loan Group No. 1 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the related Net
Principal
Distribution Amount attributable to Loan Group No. 1.
"Loan Group No. 2": Collectively, all of the Mortgage Loans that
are
Group 2 Mortgage Loans and any successor REO Mortgage Loans with
respect
thereto.
"Loan Group No. 2 Available Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the related Net
Available
Distribution Amount attributable to Loan Group No. 2.
"Loan Group No. 2 Principal Distribution Amount": With respect to
any
Distribution Date, that portion, if any, of the related Net
Principal
Distribution Amount attributable to Loan Group No. 2.
"Loan REMIC": The segregated pool of assets consisting of: (i) the
Carolina Place Mortgage Loan, together with all documents included
in the
related Mortgage File and any related Escrow Payments and Reserve
Funds; (ii)
all amounts relating to the Carolina Place Mortgage Loan or any
successor REO
Mortgage Loan with respect thereto held from time to time in the
Interest
Reserve Account, the Certificate Account, the Distribution Account,
the
Gain-on-Sale Reserve Account, the related A/B Custodial Account and
any REO
Account; (iii) any REO Property acquired in respect of the Carolina
Place
Mortgage Loan; (iv) the rights of the Depositor under Sections 2, 3
and 9 (and,
to the extent relevant to the foregoing, Sections 11, 12, 13, 14,
16, 17, 18, 19
and 21) of the Citigroup Mortgage Loan Purchase Agreement with
respect to the
Carolina Place Mortgage Loan; and (v) the rights of the mortgagee
under all
Insurance Policies with respect to the Carolina Place Mortgage
Loan; provided
that the Loan REMIC shall exclude the Carolina Place B-Noteholders'
interest in
and to any of the foregoing assets.
"Loan REMIC Deferred Interest": The amount by which interest
distributable to REMIC I with respect to any Loan REMIC Regular
Interest is
reduced by the amount of Mortgage Deferred Interest allocable to
such Loan REMIC
Regular Interest on any Distribution Date.
"Loan REMIC Principal Balance": The principal balance of a Loan
REMIC
Regular Interest as of any date of determination. As of the Closing
Date, the
Loan REMIC
42
Principal Balance of Loan REMIC Regular Interest CP-I shall equal
$114,200,000
and the Loan REMIC Principal Balance of Loan REMIC Regular interest
CP-II shall
equal $15,800,000. On each Distribution Date, the Loan REMIC
Principal Balance
of each Loan REMIC Regular Interest shall be permanently reduced by
all
distributions of principal deemed to have been made thereon on such
Distribution
Date pursuant to Section 4.01(j), and shall be further permanently
reduced by
all Realized Losses and Additional Trust Fund Expenses deemed
allocated thereto
on such Distribution Date pursuant to Section 4.04(c). On any
Distribution Date,
the Loan REMIC Principal Balance of any Loan REMIC Regular Interest
shall be
increased by any Loan REMIC Deferred Interest with respect thereto
for such
Distribution Date.
"Loan REMIC Regular Interest": Either of the two uncertificated
"regular interests" (within the meaning of Section 860G(a)(1) of
the Code) in
the Loan REMIC issued hereunder, as described (and bearing the
designations
specified) in the Preliminary Statement hereto.
"Loan REMIC Remittance Rate": With respect to each Loan REMIC
Regular
Interest, for any Distribution Date, the Net Mortgage Pass-Through
Rate with
respect to the Carolina Place Mortgage Loan or any successor REO
Mortgage Loan
for such Distribution Date.
"Loan-to-Value Ratio": With respect to any Serviced Loan, as of any
date of determination, a fraction, expressed as a percentage, the
numerator of
which is the then-current principal amount of such Serviced Loan
(plus, in the
case of a B-Note Loan, the current principal amount of the related
A-Note
Mortgage Loan), and the denominator of which is the Appraised Value
of the
related Mortgaged Property.
"Lockout Period": With respect to any Mortgage Note that prohibits
the
Mortgagor from prepaying such Serviced Loan until a date specified
in such
Mortgage Note, the period from the Closing Date until such
specified date.
"Majority Class CP Certificateholder(s)": As of any date of
determination, any Holders (or, in the case of a Class of
Book-Entry
Certificates, Certificate Owners) of Certificates entitled to
greater than 50%
of the Voting Rights allocated to the Class CP Certificates.
"Majority Controlling Class Certificateholder": As of any date of
determination, any single Holder (or, in the case of a Class of
Book-Entry
Certificates, Certificate Owner) of Certificates (other than any
Holder (or, in
the case of a Class of Book-Entry Certificates, Certificate Owner)
that is an
Affiliate of the Depositor or a Mortgage Loan Seller) entitled to
greater than
50% of the Voting Rights allocated to the Controlling Class;
provided, however,
that, if there is no single Holder (or, in the case of a Class of
Book-Entry
Certificates, Certificate Owner) of Certificates entitled to
greater than 50% of
the Voting Rights allocated to such Class, then the Majority
Controlling Class
Certificateholder shall be the single Holder (or, in the case of a
Class of
Book-Entry Certificates, Certificate Owner) of Certificates with
the largest
percentage of Voting Rights allocated to such Class. With respect
to determining
the Majority Controlling Class Certificateholder, the Senior Class
A
Certificates shall be deemed to be a single Class of Certificates,
and the Class
A-MFL and Class A-M Certificates shall also be deemed to be a
single Class of
Certificates, in each such case with such Voting Rights allocated
among the
43
Holders (or, in the case of a Class of Book-Entry Certificates,
Certificate
Owners) of such Certificates in proportion to the respective
Certificate
Principal Balances of such Certificates as of such date of
determination.
"Master Servicer": Wachovia Bank, National Association, its
successor
in interest or any successor master servicer appointed as herein
provided
(including the Trustee as successor pursuant to Section 7.02).
"Master Servicing Fee": With respect to each Serviced Loan and REO
Loan, the fee payable to the Master Servicer pursuant to Section
3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan and
REO Mortgage Loan, the percentage set forth under the column
"Master Servicing
Fee Rate" on the Mortgage Loan Schedule; and, with respect to each
B-Note Loan
and REO B-Note Loan, 0.0% per annum. In the case of each IXIS
Mortgage Loan
covered by the Midland Sub-Servicing Agreement, the portion of the
related
Master Servicing Fee Rate allocable to Midland under the terms of
such
Sub-Servicing Agreement will equal a sub-servicing fee rate of
0.02% per annum.
"Midland": Midland Loan Services, Inc. or its successor in
interest.
"Midland Sub-Servicing Agreement": That certain Sub-Servicing
Agreement, in effect as of the Closing Date, pursuant to which
Midland is to
primary service certain of the IXIS Mortgage Loans on behalf of the
Master
Servicer.
"Money Term": With respect to any Serviced Loan, the maturity date,
Mortgage Rate, Stated Principal Balance, amortization term or
payment frequency
thereof or any provision thereof requiring the payment of a
Prepayment Premium
or Yield Maintenance Charge in connection with a Principal
Prepayment (but not
any late fees or default interest provisions).
"Moody's": Moody's Investors Service, Inc., or its successor in
interest. If Moody's nor any successor remains in existence,
"Moody's" shall be
deemed to refer to such other nationally recognized statistical
rating agency or
other comparable Person designated by the Depositor, notice of
which designation
shall be given to the Trustee, the Master Servicer and the Special
Servicer, and
specific ratings of Moody's herein referenced shall be deemed to
refer to the
equivalent ratings of the party so designated.
"Mortgage": With respect to any Serviced Loan, the mortgage, deed
of
trust, deed to secure debt or similar instrument that secures the
Mortgage Note
and creates a lien on the fee or leasehold interest in the related
Mortgaged
Property.
"Mortgage Deferred Interest": With respect to any Serviced Loan,
the
amount of any interest accrued thereon at the related Mortgage Rate
(other than
Additional Interest) that, by virtue of a modification, is added to
the
outstanding principal balance of such Serviced Loan instead of
being payable on
the related Due Date on which it would otherwise have been due.
44
"Mortgage File": With respect to any Mortgage Loan (and, in the
case
of any A-Note Mortgage Loans, also with respect to the related
B-Note Loan(s)),
collectively the following documents:
(i)
the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and
all intervening endorsements thereon, endorsed on its face or by
allonge attached thereto (without recourse, representation or
warranty, express or implied) to the order of LaSalle Bank
National Association, as trustee for the registered holders of
Citigroup Commercial Mortgage Trust 2005-C3, Commercial Mortgage
Pass-Through Certificates, Series 2005-C3, or in blank (or a lost
note affidavit and indemnity with a copy of such Mortgage Note
attached thereto);
(ii) an original or a copy of the Mortgage, together with any and
all
intervening assignments thereof, in each case (unless not yet
returned by the applicable recording office) with evidence of
recording indicated thereon or certified by the applicable
recording office;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together
with any and all intervening assignments thereof, in each case
(unless not yet returned by the applicable recording office) with
evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an original executed assignment, in recordable form (except
for
any missing recording information and, if delivered in blank, the
name of the assignee), of (A) the Mortgage, (B) any related
Assignment of Leases (if such item is a document separate from
the Mortgage) and (C) any other recorded document relating to the
Mortgage Loan otherwise included in the Mortgage File, in favor
of LaSalle Bank National Association, as trustee for the
registered holders of Citigroup Commercial Mortgage Trust
2005-C3, Commercial Mortgage Pass-Through Certificates, Series
2005-C3 (and, in the case of an A/B Loan Combination, also on
behalf of the related B-Noteholder(s)), or in blank;
(v)
an original assignment of all unrecorded documents relating to
the Mortgage Loan (to the extent not already assigned pursuant to
clause (iv) above), in favor of LaSalle Bank National
Association, as trustee for the registered holders of Citigroup
Commercial Mortgage Trust 2005-C3, Commercial Mortgage
Pass-Through Certificates, Series 2005-C3 (and, in the case of an
A/B Loan Combination, also on behalf of the related
B-Noteholder(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where
the terms or provisions
45
of the Mortgage or Mortgage Note have been consolidated or
modified or the Mortgage Loan has been assumed or consolidated;
(vii) the original or a copy of the policy or certificate of
lender's
title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding
commitment (which may be a pro forma policy or marked version of
the policy that has been executed by an authorized representative
of the title company or an agreement to provide the same pursuant
to binding escrow instructions executed by an authorized
representative of the title company) to issue such title
insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence
of filing reasonably satisfactory to the Depositor of any prior
UCC Financing Statements in favor of the originator of such
Mortgage Loan or in favor of any assignee prior to the Trustee
(but only to the extent the related Mortgage Loan Seller had
possession of such UCC Financing Statements when it was to
deliver the subject Mortgage File on or prior to the Closing
Date) and, if there is an effective UCC Financing Statement and
continuation statement in favor of the Mortgage Loan Seller on
record with the applicable public office for UCC Financing
Statements, an original UCC Financing Statement assignment, in
form suitable for filing in favor of LaSalle Bank National
Association, as trustee for the registered holders of Citigroup
Commercial Mortgage Trust 2005-C3, Commercial Mortgage
Pass-Through Certificates, Series 2005-C3 (and, in the case of
any A/B Loan Combination, also on behalf of the related
B-Noteholder(s)), as assignee, or in blank;
(ix) an original or a copy of (A) any Ground Lease and (B) any loan
guaranty, indemnity, ground lessor estoppel or environmental
insurance policy or lease enhancement policy;
(x)
any intercreditor, co-lender or similar agreement relating to
permitted debt of the Mortgagor (including, in the case of an
A-Note Mortgage Loan, any related A/B Intercreditor Agreement)
and any intercreditor agreement relating to mezzanine debt
related to the Mortgagor;
(xi) copies of any loan agreement, escrow agreement or security
agreement relating to a Mortgage Loan;
(xii) a copy of any letter of credit and related transfer documents
relating to such Mortgage Loan (with the originals thereof to be
delivered to the Master Servicer);
(xiii) copies of franchise agreements and franchisor comfort
letters,
if any, for hospitality properties and any applicable transfer or
assignment documents; and
46
(xiv) with respect to each B-Note Loan, all of the above documents
with respect to such B-Note Loan and the related A/B
Intercreditor Agreement; provided that a copy of the Mortgage
Note relating to each B-Note Loan, rather than the original,
shall be provided, and no endorsements to such note shall be
provided;
provided that, whenever the term "Mortgage File" is used to refer
to documents
actually received by the Trustee or by a Custodian on its behalf,
such term
shall not be deemed to include such documents required to be
included therein
unless they are actually so received, and with respect to any
receipt or
certification by the Trustee or the Custodian for documents
described in clauses
(vi), (ix) (solely with respect to any guaranty) and (x) through
(xiv) of this
definition, shall be deemed to include only such documents to the
extent the
Trustee or Custodian has actual knowledge of their existence.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned
to the Trust Fund pursuant to Section 2.01 and listed on the
Mortgage Loan
Schedule and from time to time held in the Trust Fund. As used
herein, the term
"Mortgage Loan" includes the related Mortgage Note, Mortgage, and
other security
documents contained in the related Mortgage File.
"Mortgage Loan Purchase Agreement": Each of the Citigroup Mortgage
Loan Purchase Agreement and the IXIS Mortgage Loan Purchase
Agreement.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund attached
hereto as
Schedule I and in a computer readable format. Such list shall set
forth the
following information with respect to each Mortgage Loan:
(i)
the Mortgage Loan number;
(ii) the street address (including city, county, state and zip
code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Periodic Payment due on the first Due Date
following the Closing Date;
(v)
the Mortgage Rate as of the Cut-off Date;
(vi) the (A) original term to stated maturity, (B) remaining term
to
stated maturity and (C) the Stated Maturity Date and, in the case
of an ARD Mortgage Loan, the Anticipated Repayment Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the original and remaining amortization term;
47
(ix) whether the Mortgage Loan is secured by a Ground Lease;
(x)
the Master Servicing Fee Rate;
(xi) whether such Mortgage Loan is an ARD Mortgage Loan and if so
the
Anticipated Repayment Date and Additional Interest Rate for such
ARD Mortgage Loan;
(xii) the related Mortgage Loan Seller;
(xiii) whether such Mortgage Loan is insured by an environmental
policy;
(xiv) whether such Mortgage Loan is cross-defaulted or
cross-collateralized with any other Mortgage Loan;
(xv) whether such Mortgage Loan is a Defeasance Loan;
(xvi) whether the Mortgage Loan is secured by a letter of credit;
(xvii) whether such Mortgage Loan is an Interest Reserve Mortgage
Loan;
(xviii) whether payments on such Mortgage Loan are made to a
lock-box;
(xix) the amount of any Reserve Funds escrowed in respect of each
Mortgage Loan;
(xx) the number of grace days after the Due Date until Periodic
Payments incur late payment charges;
(xxi) the number of units or leasable square feet at the Mortgaged
Property; and
(xxii) whether the Mortgage Loan is in Loan Group No. 1 or Loan
Group
No. 2.
"Mortgage Loan Seller": Citigroup or IXIS, as applicable.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Serviced Loan, together with
any rider,
addendum or amendment thereto, or any renewal, substitution or
replacement of
such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any
REO
Mortgage Loans. None of the B-Note Loans and/or REO B-Note Loans
shall
constitute part of the Mortgage Pool.
"Mortgage Rate": With respect to (i) any Serviced Loan on or prior
to
its Stated Maturity Date, the fixed annualized rate, not including
any
Additional Interest Rate, at which interest is scheduled (in the
absence of a
default) to accrue on such Serviced Loan from time to time in
accordance with
the related Mortgage Note and applicable law; (ii) any Serviced
Loan after its
Stated Maturity Date, the annualized rate described in clause (i)
above
determined
48
without regard to the passage of such Stated Maturity Date, but
giving effect to
any modification thereof as contemplated by Section 3.20; and (iii)
any REO
Loan, the annualized rate described in clause (i) or (ii), as
applicable, above
determined as if the predecessor Serviced Loan, as applicable, had
remained
outstanding.
"Mortgaged Property": The property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related
Mortgaged Property
and assumed the obligations of the original obligor under the
Mortgage Note
and/or, in the case of an indemnity deed of trust, the entity which
granted the
lien on such Mortgaged Property.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate
of all
Prepayment Interest Shortfalls incurred in connection with the
receipt of
Principal Prepayments on the Mortgage Loans during the related
Collection
Period, exceeds (b) the aggregate amount deposited by the Master
Servicer in the
Certificate Account for such Distribution Date pursuant to Section
3.19(a) in
connection with such Prepayment Interest Shortfalls on the Mortgage
Loans.
"Net Available Distribution Amount": With respect to any
Distribution
Date, the Available Distribution Amount for such Distribution Date,
reduced (to
not less than zero) by the Class CP Available Distribution Amount
for such
Distribution Date.
"Net Cash Flow" or "NCF": As defined in and determined in
accordance
with the provisions of Exhibit E attached hereto.
"Net Investment Earnings": With respect to (i) the Certificate
Account, any Servicing Account, any Special Reserve Account, any
Reserve
Account, any REO Account and any A/B Custodial Account for any
Collection Period
and (ii) the Distribution Account, the Interest Reserve Account,
the Additional
Interest Account, the Floating Rate Account or the Gain-on-Sale
Reserve Account
(if any) for any Distribution Date, the amount, if any, by which
the aggregate
of all interest and other income realized during the subject
Collection Period,
with respect to any of the accounts described in clause (i) above,
or during the
one-month period ending on the subject Distribution Date and
beginning
immediately following the preceding Distribution Date (or, in the
case of the
initial Distribution Date, beginning on the Closing Date), with
respect to any
of the accounts described in clause (ii) above, on funds held in
such accounts,
exceeds the aggregate of all losses, if any, incurred during the
subject
Collection Period with respect to any of the accounts described in
clause (i)
above, or during the one-month period ending on the subject
Distribution Date
and beginning immediately following the preceding Distribution Date
(or, in the
case of the initial Distribution Date, beginning on the Closing
Date), with
respect to any of the accounts described in clause (ii) above, in
connection
with the investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to (i) the Certificate Account,
any Servicing Account, any Special Reserve Account, any Reserve
Account, any REO
Account and any A/B Custodial Account for any Collection Period and
(ii) the
Distribution Account, the Interest
49
Reserve Account, the Additional Interest Account, the Floating Rate
Account or
the Gain-on-Sale Reserve Account (if any) for any Distribution
Date, the amount
by which the aggregate of all losses, if any, incurred during the
subject
Collection Period, with respect to any of the accounts described in
clause (i)
above, or during the one-month period ending on the subject
Distribution Date
and beginning immediately following the preceding Distribution Date
(or, in the
case of the initial Distribution Date, beginning on the Closing
Date) with
respect to any of the accounts described in clause (ii) above, in
connection
with the investment of funds held in such account in accordance
with Section
3.06, exceeds the aggregate of all interest and other income
realized during the
subject Collection Period, with respect to any of the accounts
described in
clause (i) above, or during the one-month period ending on the
subject
Distribution Date and beginning immediately following the preceding
Distribution
Date (or, in the case of the initial Distribution Date, beginning
on the Closing
Date) with respect to any of the accounts described in clause (ii)
above, in
connection with the investment of such funds in accordance with
Section 3.06.
"Net Mortgage Pass-Through Rate":
(A) With respect to any Mortgage Loan (or any successor REO
Mortgage
Loan with respect thereto) that accrues (or is deemed to accrue)
interest
on a 30/360 Basis, for any Distribution Date, an annual rate equal
to the
Net Mortgage Rate for such Mortgage Loan in effect as of the
Closing Date
(without regard to any modification, waiver or amendment of the
terms of
such Mortgage Loan subsequent to the Closing Date); and
(B) With respect to any Mortgage Loan (or any successor REO
Mortgage
Loan with respect thereto) that accrues (or is deemed to accrue)
interest
on an Actual/360 Basis, for any Distribution Date, an annual rate
equal to:
(1) the product of (a) 12, times (b) a fraction, expressed as a
percentage,
the numerator of which fraction is, subject to adjustment as
described
below in this definition, an amount of interest equal to the
product of (i)
the number of days in the calendar month preceding the month in
which such
Distribution Date occurs, multiplied by (ii) the Stated Principal
Balance
of such Mortgage Loan (or such successor REO Mortgage Loan)
immediately
preceding such Distribution Date, multiplied by (iii) 1/360,
multiplied by
(iv) the Mortgage Rate for such Mortgage Loan in effect as of the
Closing
Date (without regard to any modification, waiver or amendment of
the terms
of such Mortgage Loan subsequent to the Closing Date), and the
denominator
of which fraction is the Stated Principal Balance of such Mortgage
Loan (or
such successor REO Mortgage Loan) immediately preceding such
Distribution
Date; minus (2) the sum of the Trustee Fee Rate and the applicable
Master
Servicing Fee Rate.
Notwithstanding the foregoing, if the subject Distribution Date
occurs
during January, except during a leap year, or February of any year
subsequent to
2005, then the amount of interest referred to in the numerator of
the fraction
described in clause (B)(1)(b) above will be decreased to reflect
any Interest
Reserve Amount with respect to the subject Mortgage Loan (or REO
Mortgage Loan)
transferred from the Distribution Account to the Interest Reserve
Account in
such calendar month. Furthermore, if the subject Distribution Date
occurs during
March of
50
any year subsequent to 2005, then the amount of interest referred
to in the
numerator of the fraction described in clause (B)(1)(b) above will
be increased
to reflect any Interest Reserve Amount(s) with respect to the
subject Mortgage
Loan (or REO Mortgage Loan) transferred from the Interest Reserve
Account to the
Distribution Account for distribution on such Distribution Date.
"Net Mortgage Rate": With respect to any Mortgage Loan or any REO
Mortgage Loan, as of any date of determination, a rate per annum
equal to the
related Mortgage Rate minus the sum of the Trustee Fee Rate and the
applicable
Master Servicing Fee Rate; and, with respect to any B-Note Loan or
REO B-Note
Loan, as of any date of determination, a per annum rate equal to
the related
Mortgage Rate minus any related Master Servicing Fee Rate.
"Net Principal Distribution Amount": With respect to any
Distribution
Date, the Principal Distribution Amount for such Distribution Date,
reduced (to
not less than zero) by the Class CP Principal Distribution Amount
for such
Distribution Date.
"New Lease": Any lease of REO Property entered into at the
direction
of the Special Servicer on behalf of REMIC I (or, in the case of
any REO
Property related to the Carolina Place Loan Combination, the Loan
REMIC),
including any lease renewed, modified or extended on behalf of such
REMIC Pool
if such REMIC Pool has the right to renegotiate the terms of such
lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously
made or
proposed to be made in respect of any Mortgage Loan or REO Mortgage
Loan by the
Master Servicer, the Trustee or the Fiscal Agent, as the case may
be, that, as
determined (in accordance with Section 4.03(c)) by the Master
Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable,
in accordance
with the Servicing Standard, in the case of the Master Servicer and
the Special
Servicer, the standard of care set forth in Section 8.01(a), in the
case of the
Trustee, or in the Fiscal Agent's reasonable good faith judgment,
in the case of
the Fiscal Agent, will not be ultimately recoverable from Late
Collections,
Insurance Proceeds or Liquidation Proceeds, or any other recovery
on or in
respect of such Mortgage Loan or REO Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously
made or proposed to be made in respect of a Serviced Loan or REO
Property by the
Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, as the
case may be, that, as determined (in accordance with Section
3.03(e)) by the
Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent, as
applicable, in accordance with the Servicing Standard, in the case
of the Master
Servicer and the Special Servicer, the standard of care set forth
in Section
8.01(a), in the case of the Trustee, or in the Fiscal Agent's
reasonable good
faith judgment, in the case of the Fiscal Agent, will not be
ultimately
recoverable from late collections, Insurance Proceeds, Liquidation
Proceeds, or
any other recovery on or in respect of such Serviced Loan or REO
Property.
51
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class XC, Class XP, Class E, Class F, Class G,
Class H,
Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class CP-1, Class
CP-2, Class CP-3, Class Y or Class R Certificate.
"Non-United States Tax Person": Any Person other than a United
States
Tax Person.
"Officer's Certificate": A certificate signed by a Servicing
Officer
of the Master Servicer or the Special Servicer, as the case may be,
or by a
Responsible Officer of the Trustee.
"Opinion of Counsel": A written opinion of counsel (which counsel
may
be a salaried counsel for the Depositor, the Master Servicer or the
Special
Servicer) acceptable to and delivered to the Trustee or the Master
Servicer, as
the case may be, except that any opinion of counsel relating to (a)
the
qualification of any REMIC Pool as a REMIC; (b) the qualification
of any Grantor
Trust as a grantor trust; (c) compliance with the REMIC Provisions
or the
Grantor Trust Provisions or (d) the resignation of the Master
Servicer or
Special Servicer pursuant to Section 6.04 must be an opinion of
counsel who is
in fact Independent of the Master Servicer, the Special Servicer or
the
Depositor, as applicable.
"Option Price": As defined in Section 3.18(c).
"Original Class Notional Amount": With respect to the Class XC
Certificates, $1,435,172,920; and, with respect to the Class XP
Certificates,
$1,331,910,000.
"Original Class Principal Balance": With respect to any Class of
Principal Balance Certificates (other than the Class A-MFL
Certificates) or the
Class A-MFL REMIC II Regular Interest, the initial Class Principal
Balance
thereof as of the Closing Date, in each case as specified in the
Preliminary
Statement; and, with respect to the Class A-MFL Certificates, the
initial Class
Principal Balance thereof as of the Closing Date equal to the
Original Class
Principal Balance of the Class A-MFL REMIC II Regular Interest.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security
interest in such Certificate as the Holder thereof and any other
interest
therein, whether direct or indirect, legal or beneficial, as owner
or as
pledgee.
"P&I Advance": As to any Mortgage Loan or REO Mortgage Loan,
any
advance made by the Master Servicer, the Trustee or the Fiscal
Agent pursuant to
Section 4.03, and in any event subject to Section 3.26.
"P&I Advance Date": The Business Day immediately preceding each
Distribution Date.
"Pass-Through Rate": With respect to:
52
(i)
the Class A-1 Certificates, for any Distribution Date, 4.3910%
per annum;
(ii) the Class A-2 Certificates, for any Distribution Date, 4.6390%
per annum;
(iii) the Class A-3 Certificates, for any Distribution Date,
4.7380%
per annum;
(iv) the Class A-SB Certificates, for any Distribution Date,
4.7550%
per annum;
(v)
the Class A-4 Certificates, for any Distribution Date, 4.8600%
per annum;
(vi) the Class A-1A Certificates, for any Distribution Date,
4.7710%
per annum;
(vii) the Class A-MFL REMIC II Regular Interest, for any
Distribution
Date, a per annum rate equal to the lesser of (A) 4.8300% and (B)
the Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(viii) the Class A-M Certificates, for any Distribution Date, a per
annum rate equal to the lesser of (A) 4.8300% and (B) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(ix) the Class A-J Certificates, for any Distribution Date, a per
annum rate equal to the lesser of (A) 4.9600% and (B) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(x)
the Class B Certificates, for any Distribution Date, a per annum
rate equal to the lesser of (A) 5.0290% and (B) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xi) the Class C Certificates, for any Distribution Date, a per
annum
rate equal to the lesser of (A) 5.0590% and (B) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xii) the Class D Certificates, for any Distribution Date, a per
annum
rate equal to the lesser of (A) 5.1580% and (B) the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
(xiii) the Class E Certificates, for any Distribution Date, a per
annum rate equal to the lesser of (A) 5.2280% and (B) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xiv) each Class of the Class F, Class G and Class H Certificates,
for
any Distribution Date, a per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate for such Distribution
Date;
53
(xv) each Class of the Class J, Class K, Class L, Class M, Class N,
Class O and Class P Certificates, for any Distribution Date, a
per annum rate equal to the lesser of (A) 4.6230% and (B) the
Weighted Average Net Mortgage Pass-Through Rate for such
Distribution Date;
(xvi) each Class of the Class CP Certificates, for any Distribution
Date, a per annum rate equal to the Net Mortgage Pass-Through
Rate with respect to the Carolina Place Mortgage Loan (or any
successor REO Mortgage Loan with respect thereto) for such
Distribution Date;
(xvii) the Class XC Certificates, for any Distribution Date, a per
annum rate equal to the weighted average of the Class XC Strip
Rates for the Class XC 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);
(xviii) the Class XP Certificates for any Distribution Date, a per
annum 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); provided that, for
reporting purposes, the Pass-Through Rate with respect to the
Class XP Certificates for each Distribution Date shall be
calculated in accordance with the Prospectus Supplement; and
(xix) with respect to the Class A-MFL Certificates, (A) for any
Distribution Date with respect to which a Class A-MFL
Distribution Conversion does not exist, the per annum rate,
expressed as a percentage, equal to the applicable value of LIBOR
specified in or calculated in accordance with Section 1.03, plus
0.2400% per annum, and (B) for any Distribution Date with respect
to which a Class A-MFL Distribution Conversion does exist, the
Pass-Through Rate for the Class A-MFL REMIC II Regular Interest
for that Distribution Date.
"Penalty Interest": With respect to any Serviced Loan (or any
successor REO Loan with respect thereto), any amounts collected
thereon, other
than late payment charges, Additional Interest, Prepayment Premiums
or Yield
Maintenance Charges, that represent penalty interest (arising out
of a default)
in excess of interest on the Stated Principal Balance of such
Serviced Loan (or
such successor REO Loan) accrued at the related Mortgage Rate.
"Percentage Interest": With respect to any Regular Certificate or
Class A-MFL Certificate, the portion of the relevant Class
evidenced by such
Certificate, expressed as a percentage, the numerator of which is
the
Certificate Principal Balance or Certificate Notional Amount, as
the case may
be, of such Certificate as of the Closing Date, as specified on the
face
thereof, and the denominator of which is the Original Class
Principal Balance or
Original Class Notional Amount, as the case may be, of the relevant
Class. With
respect to a Class R
54
Certificate or Class Y-Certificate, the percentage interest in
distributions to
be made with respect to the relevant Class, as stated on the face
of such
Certificate.
"Periodic Payment": With respect to any Serviced Loan as of any Due
Date, the scheduled payment of principal and/or interest on such
Serviced Loan
(exclusive of Additional Interest), including any Balloon Payment,
that is
actually payable by the related Mortgagor from time to time under
the terms of
the related Mortgage Note (as such terms may be changed or modified
in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or by reason of a modification, waiver or amendment
granted or agreed
to by the Special Servicer pursuant to Section 3.20).
"Permitted Investments": Any one or more of the following
obligations
or securities (including obligations or securities of or managed by
LaSalle Bank
National Association (or any successor Trustee) if otherwise
qualifying
hereunder):
(i)
direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or
any agency or instrumentality thereof (having original maturities
of not more than 365 days); provided such obligations are backed
by the full faith and credit of the United States. Such
obligations must be limited to those instruments that have a
predetermined fixed dollar amount of principal due at maturity
that cannot vary or change or be liquidated prior to maturity.
Interest may either be fixed or variable. In addition, such
obligations may not have a rating from S&P with an "r"
highlighter. If such interest is variable, interest must be tied
to a single interest rate index plus a single fixed spread (if
any), and move proportionately with that index;
(ii) repurchase obligations with respect to any security described
in
clause (i) above (having original maturities of not more than 365
days); provided that the short-term deposit or debt obligations,
of the party agreeing to repurchase such obligations are rated in
the highest rating categories of each of S&P and Moody's or
such
lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies. In addition, it may
not have a rating from S&P with an "r" highlighter and its
terms
must have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. Interest may either be fixed
or variable. If such interest is variable, interest must be tied
to a single interest rate index plus a single fixed spread (if
any), and move proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized under
the laws of the United States or any state thereof (having
original maturities of not more than 365 days), the short term
obligations of which are rated in the highest rating categories
of each of S&P and Moody's or such lower rating as will
55
not result in qualification, downgrading or withdrawal of the
ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies. In addition, its terms should
have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. In addition, it may not have
a rating from S&P with an "r" highlighter and its terms must
have
a predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to
a single interest rate index plus a single fixed spread (if any),
and move proportionately with that index;
(iv) commercial paper (having original maturities of not more than
365
days) of any corporation incorporated under the laws of the
United States or any state thereof (or if not so incorporated,
the commercial paper is United States Dollar denominated and
amounts payable thereunder are not subject to any withholding
imposed by any non-United States jurisdiction) which is rated in
the highest rating category of each of S&P and Moody's or such
lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies. The commercial paper
by its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. In
addition, it may not have a rating from S&P with an "r"
highlighter and its terms must have a predetermined fixed dollar
amount of principal due at maturity that cannot vary or change.
Interest may either be fixed or variable. If such interest is
variable, interest must be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately
with that index;
(v)
units of money market funds that maintain a constant asset value
and which are rated in the highest applicable rating category by
Moody's and which are rated "AAAm" or "AAAm-G" by S&P (or such
lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies) and which seeks to
maintain a constant net asset value. In addition, it may not have
a rating from S&P with an "r" highlighter and its terms must
have
a predetermined fixed dollar amount of principal due at maturity
that cannot vary or change; and
(vi) any other obligation or security that constitutes a "cash flow
investment" within the meaning of Section 860G(a)(6) of the Code
and is acceptable to each Rating Agency, evidence of which
acceptability shall be provided in writing by each Rating Agency
to the Master Servicer, the Special Servicer and the Trustee;
provided, however, in no event shall such other obligation or
security be rated less than "AA/A-1" or "Aa3/P+" by S&P or
Moody's, respectively;
56
provided that (1) no investment described hereunder shall evidence
either the
right to receive (x) only interest with respect to such investment
or (y) a
yield to maturity greater than 120% of the yield to maturity at par
of the
underlying obligations; and (2) no investment described hereunder
may be
purchased at a price greater than par if such investment may be
prepaid or
called at a price less than its purchase price prior to stated
maturity.
"Permitted Transferee": Any Transferee of a Class R Certificate
other
than a Disqualified Organization, a Plan, a Non-United States Tax
Person or a
United States Tax Person with respect to whom income on the Class R
Certificate
is allocable to a foreign permanent establishment or fixed base,
within the
meaning of an applicable income tax treaty, of such Person or any
other United
States Tax Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Plurality Class R Certificateholder": As to any taxable year of
any
REMIC Pool, the Holder of Certificates holding the largest
Percentage Interest
of the Class R Certificates.
"Pool REO Account": A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on
behalf of the
Trustee in trust for the Certificateholders, which shall be
entitled
substantially as follows: "Allied Capital Corporation, as Special
Servicer for
LaSalle Bank National Association, as Trustee, on behalf of and in
trust for the
registered holders of Citigroup Commercial Mortgage Trust 2005-C3,
Commercial
Mortgage Pass-Through Certificates, Series 2005-C3."
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on
the
Certificates for federal income tax purposes, 0% CPR (within the
meaning of the
Prospectus), except that it is assumed that each ARD Mortgage Loan
is repaid on
its Anticipated Repayment Date.
"Prepayment Interest Excess": With respect to any Serviced Loan
that
was subject to a Principal Prepayment in full or in part during any
Collection
Period, which Principal Prepayment was applied to such Serviced
Loan following
such Serviced Loan's Due Date in such Collection Period, the amount
of interest
(net of the related Master Servicing Fee and, if applicable, any
related Penalty
Interest and Additional Interest) accrued on the amount of such
Principal
Prepayment during the period from and after such Due Date and
ending on the date
such Principal Prepayment was applied to such Serviced Loan, to the
extent
collected (exclusive of any related Prepayment Premium or Yield
Maintenance
Charge actually collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan
that was subject to a Principal Prepayment in full or in part
during any
Collection Period, which Principal Prepayment was applied to such
Mortgage Loan
prior to such Mortgage Loan's Due Date in such Collection Period,
the amount of
interest, to the extent not collected from the related Mortgagor
(without regard
to any Prepayment Premium or Yield Maintenance Charge actually
collected),
57
that would have accrued on the amount of such Principal Prepayment
during the
period commencing on the date as of which such Principal Prepayment
was applied
to such Mortgage Loan and ending on the day immediately preceding
such Due Date,
inclusive (exclusive, however, of (i) any related Master Servicing
Fees that
would have been payable out of the uncollected interest and (ii)
any portion of
the uncollected interest that would have constituted Penalty
Interest and/or
Additional Interest).
"Prepayment Premium": Any premium, penalty or fee (other than a
Yield
Maintenance Charge) paid or payable, as the context requires, by a
Mortgagor in
connection with a Principal Prepayment.
"Primary Collateral": With respect to any Crossed Loan, that
portion
of the Mortgaged Property designated as directly securing such
Crossed Loan and
excluding any Mortgaged Property as to which the related lien may
only be
foreclosed upon by exercise of the cross-collateralization
provisions of such
Crossed Loan.
"Prime Rate": The "prime rate" published in the "Money Rates"
Section
of The Wall Street Journal, as such "prime rate" may change from
time to time.
If The Wall Street Journal ceases to publish the "prime rate," then
the Master
Servicer shall select an equivalent publication that publishes such
"prime
rate"; and if such "prime rate" is no longer generally published or
is limited,
regulated or administered by a governmental or quasi-governmental
body, then the
Master Servicer shall select a comparable interest rate index. In
either case,
such selection shall be made by the Master Servicer in its sole
discretion and
the Master Servicer shall notify the Trustee and the Special
Servicer in writing
of its selection.
"Principal Balance Certificate": Any Class A-1, Class A-2, Class
A-3,
Class A-SB, Class A-4, Class A-1A, Class A-MFL, Class A-M, Class
A-J, Class B,
Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L,
Class M, Class N, Class O, Class P, Class CP-1, Class CP-2 or Class
CP-3
Certificate.
"Principal Distribution Amount": With respect to any Distribution
Date, an amount equal to:
(a) the aggregate of the principal portions of all Periodic
Payments
(other than Balloon Payments) and any Assumed Periodic Payments due
or
deemed due in respect of the Mortgage Loans for their respective
Due Dates
occurring during the related Collection Period, to the extent paid
by the
related Mortgagor during or prior to, or otherwise received during,
the
related Collection Period or advanced by the Master Servicer, the
Trustee
or the Fiscal Agent, as applicable, for such Distribution Date;
plus
(b) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period; plus
(c) with respect to any Mortgage Loan as to which the related
Stated
Maturity Date occurred during or prior to the related Collection
Period,
any payment of principal (other than a Principal Prepayment) made
by or on
behalf of the related Mortgagor during the related Collection
Period
(including any Balloon Payment), net of any portion of such
58
payment that represents a recovery of the principal portion of any
Periodic
Payment (other than a Balloon Payment) due, or the principal
portion of any
Assumed Periodic Payment deemed due, in respect of such Mortgage
Loan on a
Due Date during or prior to the related Collection Period and
included as
part of the Principal Distribution Amount for such Distribution
Date or any
prior Distribution Date pursuant to clause (a) above; plus
(d) the aggregate of the principal portion of all Liquidation
Proceeds, Insurance Proceeds and, to the extent not otherwise
included in
clause (a), (b) or (c) above, payments that were received on the
related
Mortgage Loans during the related Collection Period and that were
identified and applied by the Master Servicer and/or Special
Servicer as
recoveries of principal of such Mortgage Loans, in each case net of
any
portion of such amounts that represents a recovery of the principal
portion
of any Periodic Payment (other than a Balloon Payment) due, or of
the
principal portion of any Assumed Periodic Payment deemed due, in
respect of
the related Mortgage Loan on a Due Date during or prior to the
related
Collection Period and included as part of the Principal
Distribution Amount
for such Distribution Date or any prior Distribution Date pursuant
to
clause (a) above; plus
(e) with respect to any REO Properties, the aggregate of the
principal
portions of all Assumed Periodic Payments deemed due in respect of
the
related REO Mortgage Loans for their respective Due Dates occurring
during
the related Collection Period to the extent received (in the form
of REO
Revenues or otherwise) during the related Collection Period or
advanced
with respect to such Distribution Date; plus
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period on such REO
Properties and
that were identified and applied by the Master Servicer and/or
Special
Servicer as recoveries of principal of the related REO Mortgage
Loans, in
each case net of any portion of such amounts that represents a
recovery of
the principal portion of any Periodic Payment (other than a Balloon
Payment) due, or of the principal portion of any Assumed Periodic
Payment
deemed due, in respect of the related REO Mortgage Loan or the
predecessor
Mortgage Loan on a Due Date during or prior to the related
Collection
Period and included as part of the Principal Distribution Amount
for such
Distribution Date or any prior Distribution Date pursuant to clause
(a) or
(e) above; plus
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Net Principal
Distribution
Amount for the immediately preceding Distribution Date, over the
aggregate
distributions of principal made on the Sequential Pay Certificates
(exclusive of the Class A-MFL Certificates) and the Class A-MFL
REMIC II
Regular Interest on such immediately preceding Distribution Date
pursuant
to Section 4.01; plus
(h) any amounts that were used to reimburse Nonrecoverable Advances
(including interest on such Nonrecoverable Advances) from principal
collections on the
59
Mortgage Pool pursuant to Section 3.05(a) hereof which are
subsequently
recovered on the related Mortgage Loan or REO Mortgage Loan during
the
related Collection Period; less
(i) the amount of any reimbursements of Nonrecoverable Advances
(including interest on such Nonrecoverable Advances) that are paid
or
reimbursed from principal collections on the Mortgage Pool pursuant
to
Section 3.05(a) hereof with respect to such Distribution Date where
such
principal collections would have otherwise been included in the
Principal
Distribution Amount for such Distribution Date pursuant to any of
clauses
(a) through (f) above;
provided that, for the Final Distribution Date, the Principal
Distribution
Amount shall in no event be less than the aggregate Stated
Principal Balance of
the Mortgage Pool immediately prior to such Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor
on a Serviced Loan that is received in advance of its scheduled Due
Date;
provided that it shall not include a payment of principal that is
accompanied by
an amount of interest representing scheduled interest due on any
date or dates
in any month or months subsequent to the month of prepayment.
"Privileged Person": Any Certificateholder, any Certificate Owner,
any
party hereto, any Person identified to the Trustee or the Master
Servicer, as
applicable, as a prospective transferee of a Certificate or
interest therein (or
a licensed or registered investment adviser representing such
Person), any
Rating Agency, any Mortgage Loan Seller, any B-Noteholder, any
Underwriter or
any designee of the Depositor or any party hereto; provided that no
Certificate
Owner or prospective transferee of a Certificate or interest
therein (or a
licensed or registered investment adviser representing such Person)
shall be
considered a "Privileged Person" or be entitled to a password or
restricted
access as contemplated by Section 3.15 or Section 4.02 unless such
Person has
delivered to the Trustee or the Master Servicer, as applicable, a
certification
in the form of Exhibit L-1 or Exhibit L-2, as applicable, which
certification is
available on the Trustee's Internet Website.
"Proposed Plan": As defined in Section 3.17(a)(iii).
"Prospectus": The prospectus dated June 15, 2005, as supplemented
by
the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The final prospectus supplement dated June
15, 2005 of the Depositor relating to the registration of the
Registered
Certificates under the Securities Act.
"Purchase Option": As defined in Section 3.18(c).
"Purchase Option Notice": As defined in Section 3.18(e).
60
"Purchase Price": With respect to any Mortgage Loan (or REO
Property),
a cash price equal to the sum of (without duplication): (a) the
outstanding
principal balance of such Mortgage Loan (or the related REO
Mortgage Loan) as of
the date of purchase, (b) all accrued and unpaid interest on such
Mortgage Loan
(or the related REO Mortgage Loan) at the related Mortgage Rate
(other than
Additional Interest) to but not including the Due Date in the
Collection Period
of purchase plus any accrued and unpaid interest on P&I
Advances made with
respect to such Mortgage Loan (or the related REO Mortgage Loan),
(c) all
related and unreimbursed Servicing Advances plus any accrued and
unpaid interest
thereon, (d) any reasonable and customary costs and expenses,
including, but not
limited to, the cost of any enforcement action (including
reasonable and
customary legal fees incurred in respect of such action), incurred
by the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund in
connection with
any purchase by a Mortgage Loan Seller (to the extent not included
in clause (c)
above) and (e) any other Additional Trust Fund Expenses in respect
of such
Mortgage Loan (including any Additional Trust Fund Expenses
previously
reimbursed or paid by the Trust Fund but not so reimbursed by the
related
Mortgagor or other party or from Insurance Proceeds or condemnation
proceeds or
any other collections in respect of the Mortgage Loan or the
related Mortgaged
Property from a source other than the Trust Fund, and including, if
applicable,
any Liquidation Fee payable to the Special Servicer in respect of
such Mortgage
Loan pursuant to Section 3.11(c)); provided that the Purchase Price
shall not be
reduced by any outstanding P&I Advance.
"Qualified Institutional Buyer" or "QIB": A "qualified
institutional
buyer" as defined in Rule 144A under the Securities Act.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Insurer": An insurance company or security or bonding
company qualified to write the related Insurance Policy in the
relevant
jurisdiction (i) with a minimum insurance financial strength or
claims paying
ability rating of at least "A3" by Moody's and "A" by S&P (or
the obligations of
which are guaranteed or backed in writing by a company having such
a financial
strength or claims paying ability rating), and (ii) with respect to
the fidelity
bond and errors and omissions Insurance Policy required to be
maintained
pursuant to Section 3.07(c), an insurance company that has a
financial strength
or claims paying ability rated no lower than two rating categories
(without
regard to pluses or minuses or numerical qualifications) below the
rating
assigned to the then highest rated outstanding Certificate (or,
with respect to
the required Moody's rating, if not rated by Moody's, then at least
"A-" by two
other nationally recognized statistical rating organizations (which
may include
S&P)) but in no event lower than "A-" by S&P and "A3" by
Moody's (or, if not
rated by Moody's, then at least "A-" by two other nationally
recognized
statistical rating organizations (which may include S&P)), or,
in the case of
clauses (i) and (ii), such other rating as each Rating Agency shall
have
confirmed in writing will not cause such Rating Agency to
downgrade, qualify or
withdraw the then-current rating assigned to any of the
Certificates that are
then currently being rated by such Rating Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must,
on
the date of substitution: (i) have an outstanding Stated Principal
Balance,
after application of all scheduled payments of principal and
interest due during
or prior to the month of substitution, not
61
in excess of the Stated Principal Balance of the deleted Mortgage
Loan as of the
Due Date in the calendar month during which the substitution
occurs; (ii) have a
Mortgage Rate not less than the Mortgage Rate of the deleted
Mortgage Loan;
(iii) have the same Due Date as the deleted Mortgage Loan; (iv)
accrue interest
on the same basis as the deleted Mortgage Loan (for example, on a
30/360 Basis);
(v) have a remaining term to stated maturity not greater than, and
not more than
two years less than, the remaining term to stated maturity of the
deleted
Mortgage Loan; (vi) have an original Loan-to-Value Ratio not higher
than that of
the deleted Mortgage Loan and a current Loan-to-Value Ratio not
higher than the
then-current Loan-to-Value Ratio of the deleted Mortgage Loan;
(vii) comply as
of the date of substitution with all of the representations and
warranties set
forth in the applicable Mortgage Loan Purchase Agreement; (viii)
have an
Environmental Assessment that indicates no adverse environmental
conditions with
respect to the related Mortgaged Property and which will be
delivered as a part
of the related Servicing File; (ix) have an original Debt Service
Coverage Ratio
(calculated to include the additional debt from any encumbrance) of
not less
than the original Debt Service Coverage Ratio (calculated to
include the
additional debt from any encumbrance) of the deleted Mortgage Loan
and a current
Debt Service Coverage Ratio (calculated to include the additional
debt from any
encumbrance) of not less than the current Debt Service Coverage
Ratio
(calculated to include the additional debt from any encumbrance) of
the deleted
Mortgage Loan; (x) be determined by an Opinion of Counsel (at the
applicable
Mortgage Loan Seller's expense) to be a "qualified replacement
mortgage" within
the meaning of Section 860G(a)(4) of the Code; (xi) not have a
maturity date
after the date two years prior to the Rated Final Distribution
Date; (xii) not
be substituted for a deleted Mortgage Loan unless the Trustee has
received prior
confirmation in writing by each Rating Agency that such
substitution will not
result in the withdrawal, downgrade, or qualification of the rating
assigned by
the Rating Agency to any Class of Certificates then rated by the
Rating Agency
(the cost, if any, of obtaining such confirmation to be paid by the
Mortgage
Loan Seller); (xiii) have a date of origination that is not more
than 12 months
prior to the date of substitution; (xiv) have been approved by the
Controlling
Class Representative (or, if there is no Controlling Class
Representative then
serving, by the Holders of Certificates representing a majority of
the Voting
Rights allocated to the Controlling Class) and (xv) not be
substituted for a
deleted Mortgage Loan if it would result in the termination of the
REMIC status
of any REMIC Pool or the imposition of tax on any REMIC Pool other
than a tax on
income expressly permitted or contemplated to be received by the
terms of this
Agreement, as determined by an Opinion of Counsel (at the
applicable Mortgage
Loan Seller's expense). In the event that one or more mortgage
loans are
substituted for one or more deleted Mortgage Loans, then the
amounts described
in clause (i) shall be determined on the basis of aggregate
principal balances
and the rates described in clause (ii) above and the remaining term
to stated
maturity referred to in clause (v) above shall be determined on a
weighted
average basis; provided that no Mortgage Loan shall have a Net
Mortgage Rate
that is less than the highest Pass-Through Rate of any Class of
Sequential Pay
Certificates bearing a fixed rate and outstanding at the time of
the
substitution. When a Qualified Substitute Mortgage Loan is
substituted for a
deleted Mortgage Loan, the applicable Mortgage Loan Seller shall
certify that
the Mortgage Loan meets all of the requirements of the above
definition and
shall send such certification to the Trustee. A Qualified
Substitute Mortgage
Loan may not be substituted for the Carolina Place Mortgage Loan.
"Rated Final Distribution Date": The Distribution Date in May 2043.
62
"Rating Agency": Each of Moody's and S&P.
"Realized Loss": With respect to: (1) each defaulted Serviced Loan
as
to which a Final Recovery Determination has been made, or with
respect to any
successor REO Loan as to which a Final Recovery Determination has
been made as
to the related REO Property, an amount (not less than zero) equal
to (a) the
unpaid principal balance of such Serviced Loan or REO Loan, as the
case may be,
as of the commencement of the Collection Period in which the Final
Recovery
Determination was made, plus (b) without taking into account the
amount
described in subclause (1)(c) of this definition, all accrued but
unpaid
interest on such Serviced Loan or such REO Loan, as the case may
be, at the
related Mortgage Rate to but not including the Due Date in the
Collection Period
in which the Final Recovery Determination was made (exclusive of
any portion
thereof that constitutes Prepayment Premiums or Yield Maintenance
Charges),
minus (c) all payments and proceeds, if any, actually received in
respect of,
and allocable as interest on or principal of, such Serviced Loan or
such REO
Loan, as the case may be, during the Collection Period in which
such Final
Recovery Determination was made; (2) each defaulted Serviced Loan
as to which
any portion of the principal or previously accrued interest (other
than
Additional Interest and Penalty Interest) payable thereunder was
canceled in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or a modification, waiver or amendment of such Serviced
Loan granted
or agreed to by the Special Servicer pursuant to Section 3.20, the
amount of
such principal and/or interest so canceled; (3) each Serviced Loan
as to which
the Mortgage Rate thereon has been permanently reduced and not
recaptured for
any period in connection with a bankruptcy or similar proceeding
involving the
related Mortgagor or a modification, waiver or amendment of such
Serviced Loan
granted or agreed to by the Special Servicer pursuant to Section
3.20, the
amount of the consequent reduction in the interest portion of each
successive
Periodic Payment due thereon (each such Realized Loss shall be
deemed to have
been incurred on the Due Date for each affected Periodic Payment);
and (4) each
Serviced Loan for which a Final Recovery Determination has been
made, to the
extent not included in clause (1) above, Nonrecoverable Advances
(including
interest on such Nonrecoverable Advance) to the extent paid out of
general
collections on the Mortgage Pool.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which
such
Distribution Date occurs.
"Reference Rate": With respect to any Distribution Date, the
applicable rate per annum set forth on Schedule IV hereto.
"Registered Certificate": Any Class A-1, Class A-2, Class A-3,
Class
A-SB, Class A-4, Class A-1A, Class A-MFL, Class A-M, Class A-J,
Class B, Class C
or Class D Certificate.
"Regular Certificate": Any Principal Balance Certificate (other
than a
Class A-MFL Certificate) or Class X Certificate.
"Regulation S": Regulation S under the Securities Act.
63
"Regulation S Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside of
the United
States in reliance on Regulation S, one or collectively more global
Certificates
of such Class registered in the name of the Depository or its
nominee, in
definitive, fully registered form without interest coupons, each of
which
Certificates bears a Regulation S Legend.
"Regulation S Legend": With respect to any Class of Book-Entry
Non-Registered Certificates offered and sold outside the United
States in
reliance on Regulation S, a legend generally to the effect that
such
Certificates may not be offered, sold, pledged or otherwise
transferred in the
United States or to a United States Securities Person prior to the
applicable
Regulation S Release Date, except pursuant to an exemption from the
registration
requirements of the Securities Act.
"Regulation S Release Date": With respect to any Class of
Book-Entry
Non-Registered Certificates offered and sold outside the United
States in
reliance on Regulation S, the date that is 40 days after the later
of (a) the
commencement of the offering of such Certificates to Persons other
than
distributors in reliance on Regulation S, and (b) the date of
closing of the
offering.
"Reimbursement Rate": The rate per annum applicable to the accrual
of
interest on Servicing Advances in accordance with Section 3.03(d)
and on P&I
Advances in accordance with Section 4.03(d), which rate per annum
is equal to
the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code.
"REMIC I": The segregated pool of assets subject hereto,
constituting
the primary trust created hereby and to be administered hereunder
with respect
to which a separate REMIC election is to be made and, consisting
of: (i) the
Loan REMIC Regular Interests; (ii) all of the Mortgage Loans as
from time to
time are subject to this Agreement and all payments under and
proceeds of such
Mortgage Loans (other than the Carolina Place Mortgage Loan)
received after the
Closing Date (excluding all Additional Interest, if any, on such
Mortgage
Loans), together with all documents included in the related
Mortgage Files and
any related Escrow Payments and Reserve Funds; (iii) except to the
extent they
are part of the Loan REMIC, all amounts held from time to time in
the Interest
Reserve Account, the Certificate Account, the Distribution Account,
the
Gain-on-Sale Reserve Account, any Pool REO Account and any A/B
Custodial
Account; (iv) any REO Property acquired in respect of a Mortgage
Loan (other
than the Carolina Place Mortgage Loan); (v) except to the extent
they are part
of the Loan REMIC, the rights of the Depositor under Sections 2, 3
and 9 (and,
to the extent relevant to the foregoing, Sections 11, 12, 13, 14,
16, 17, 18, 19
and 21) of each of the Mortgage Loan Purchase Agreements with
respect to the
Mortgage Loans; and (vi) the rights of the mortgagee under all
Insurance
Policies with respect to the Mortgage Loans (other than the
Carolina Place
Mortgage Loan), in each case exclusive of the interest of any
B-Noteholder;
provided that REMIC I shall not include any B-Note Loan or any
successor REO
B-Note Loan with respect thereto or any payments or other
collections of
principal, interest, Prepayment Premiums, Yield Maintenance
64
Charges or other amounts collected on a B-Note Loan or any
successor REO B-Note
Loan with respect thereto.
"REMIC I Deferred Interest": The amount by which interest
distributable to REMIC II with respect to any REMIC I Regular
Interest is
reduced by the amount of Mortgage Deferred Interest allocable to
such REMIC I
Regular Interest on any Distribution Date.
"REMIC I Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of
the Closing
Date, the REMIC I Principal Balance of each REMIC I Regular
Interest shall equal
the amount specified as such in the Preliminary Statement hereto.
On each
Distribution Date, the REMIC I Principal Balance of each REMIC I
Regular
Interest shall be: (i) permanently reduced by all distributions of
principal
deemed to have been made in respect of such REMIC I Regular
Interest on such
Distribution Date pursuant to Section 4.01(i); (ii) further
permanently reduced
on such Distribution Date by all Realized Losses and Additional
Trust Fund
Expenses deemed to have been allocated thereto on such Distribution
Date
pursuant to Section 4.04(b); and (iii) increased by any REMIC I
Deferred
Interest with respect thereto for such Distribution Date.
"REMIC I Regular Interest": Any of the 60 uncertificated "regular
interests" (within the meaning of Section 860G(a)(1) of the Code)
in REMIC I
issued hereunder, as described (and bearing the designations
specified) in the
Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest, other than REMIC I Regular Interest CP-1, REMIC I Regular
Interest
CP-2 and REMIC I Regular Interest CP-3 for any Distribution Date,
an annual rate
equal to the Weighted Average Net Mortgage Pass-Through Rate for
such
Distribution Date; and, with respect to each of REMIC I Regular
Interest CP-1,
REMIC I Regular Interest CP-2 and REMIC I Regular Interest CP-3,
for any
Distribution Date, an annual rate equal to the Loan REMIC
Remittance Rate with
respect to Loan REMIC Regular Interest CP-II for such Distribution
Date.
"REMIC II": The segregated pool of assets consisting of all of the
REMIC I Regular Interests and all amounts deemed distributed
thereon from time
to time, conveyed in trust to the Trustee for the benefit of REMIC
II, as holder
of the REMIC I Regular Interests, and the Holders of the Class R
Certificates,
insofar as the Class R Certificates evidence the sole class of
residual
interests in REMIC II, with respect to which segregated pool of
assets a
separate REMIC election is to be made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-SB, Class A-4, Class A-1A, Class A-M, Class A-J, Class B, Class
C, Class D,
Class XC, Class XP, Class E, Class F, Class G, Class H, Class J,
Class K, Class
L, Class M, Class N, Class O, Class P, Class CP-1, Class CP-2 or
Class CP-3
Certificate or, insofar as it represents a portion of the sole
class of residual
interests in REMIC II, any Class R Certificate.
"REMIC Pool": Each of REMIC I, REMIC II and the Loan REMIC.
"REMIC Provisions": Provisions of the federal income tax law
relating
to real estate mortgage investment conduits, which appear at
Sections 860A
through 860G of
65
Subchapter M of Chapter 1 of the Code, and related provisions, and
proposed,
temporary and final Treasury regulations and any published rulings,
notices and
announcements promulgated thereunder, as the foregoing may be in
effect from
time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": The Pool REO Account or any A/B REO Account, as
applicable.
"REO Acquisition": The acquisition of any REO Property pursuant to
Section 3.09.
"REO B-Note Loan": The loan deemed for purposes hereof to succeed a
B-Note Loan and to be outstanding with respect to any A/B REO
Property. The REO
B-Note Loan shall be deemed to be outstanding for so long as the
related A/B REO
Property or any interest therein remains part of the Trust Fund
and, further, be
deemed to have the same terms and conditions as the predecessor
B-Note Loan
(such terms and conditions to be applied without regard to the
default on such
predecessor loan and the acquisition of the related REO Property as
part of the
Trust Fund). The REO B-Note Loan shall be deemed to have an initial
unpaid
principal balance and Stated Principal Balance equal to the unpaid
principal
balance and Stated Principal Balance, respectively, of its
predecessor loan as
of the date of the related REO Acquisition. All amounts due and
owing, or deemed
to be due and owing, in respect of a B-Note Loan as of the date of
the related
REO Acquisition, shall be deemed to continue to be due and owing in
respect of a
successor REO B-Note Loan. The Master Servicer shall allocate
proceeds, revenues
and other collections received on or with respect to the related
A/B REO
Property to amounts due and owing, or deemed to be due and owing,
under the
subject REO B-Note Loan in accordance with the related A/B
Intercreditor
Agreement. Notwithstanding the foregoing, all amounts payable or
reimbursable to
the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent in
respect of a B-Note Loan as of the date of the related REO
Acquisition,
including, without limitation, any unpaid servicing compensation
and any
unreimbursed Servicing Advances, together with any interest accrued
and payable
to the Master Servicer, the Special Servicer, the Trustee or the
Fiscal Agent in
respect of such Servicing Advances in accordance with Sections
3.03(d) and
4.03(d), shall continue to be payable or reimbursable to the Master
Servicer,
the Special Servicer, the Trustee or the Fiscal Agent, as the case
may be, in
respect of the REO B-Note Loan pursuant to Section 3.05(g) or, to
the extent
provided thereby, Section 3.05(a), as the case may be.
"REO Disposition": The sale or other disposition of any REO
Property
pursuant to Section 3.18(h).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": An REO Mortgage Loan or an REO B-Note Loan, as
applicable.
"REO Mortgage Loan": The Mortgage Loan deemed for purposes hereof
to
be outstanding with respect to each REO Property. Each REO Mortgage
Loan shall
be deemed to
66
be outstanding for so long as the related REO Property remains part
of the Trust
Fund and deemed to provide for Periodic Payments of principal
and/or interest
equal to its Assumed Periodic Payment and otherwise to have the
same terms and
conditions as its predecessor Mortgage Loan (such terms and
conditions to be
applied without regard to the default on such predecessor Mortgage
Loan and the
acquisition of the related REO Property as part of the Trust Fund).
Each REO
Mortgage Loan shall be deemed to have an initial unpaid principal
balance and
Stated Principal Balance equal to the unpaid principal balance and
Stated
Principal Balance, respectively, of its predecessor Mortgage Loan
as of the date
of the related REO Acquisition. All Periodic Payments (other than a
Balloon
Payment), Assumed Periodic Payments (in the case of a Balloon
Mortgage Loan
delinquent in respect of its Balloon Payment) and other amounts due
and owing,
or deemed to be due and owing, in respect of the predecessor
Mortgage Loan as of
the date of the related REO Acquisition, shall be deemed to
continue to be due
and owing in respect of an REO Mortgage Loan. In addition,
Nonrecoverable
Advances (including interest on such Nonrecoverable Advances) with
respect to
such REO Mortgage Loan that were paid from collections on the
Mortgage Loans and
resulted in principal distributed to the Certificateholders being
reduced
pursuant to Section 3.05(a) hereof, shall be deemed outstanding
until recovered
or until a Final Recovery Determination is made. Collections in
respect of each
REO Mortgage Loan (after provision for amounts to be applied to the
payment of,
or to be reimbursed to the Master Servicer, the Special Servicer,
the Trustee or
the Fiscal Agent for the payment of, the costs of operating,
managing, selling,
leasing and maintaining the related REO Property or for the
reimbursement of the
Master Servicer, the Special Servicer, the Trustee or the Fiscal
Agent for other
related Servicing Advances as provided in this Agreement) shall be
treated:
first, as a recovery of Nonrecoverable Advances (including interest
on such
Nonrecoverable Advance) with respect to such REO Mortgage Loan,
that were paid
from collections on the Mortgage Loans and resulted in principal
distributed to
the Certificateholders being reduced pursuant to Section 3.05(a)
hereof; second,
as a recovery of accrued and unpaid interest on such REO Mortgage
Loan at the
related Mortgage Rate to but not including the Due Date in the
Collection Period
of receipt (exclusive of any portion thereof that constitutes
Additional
Interest); third, as a recovery of principal of such REO Mortgage
Loan to the
extent of its entire unpaid principal balance; and fourth, in
accordance with
the normal servicing practices of the Master Servicer, as a
recovery of any
other amounts due and owing in respect of such REO Mortgage Loan,
including,
without limitation, (i) Yield Maintenance Charges, Prepayment
Premiums and
Penalty Interest and (ii) Additional Interest and other amounts, in
that order;
provided that, in the case of any REO Mortgage Loan that succeeds
an A-Note
Mortgage Loan, the foregoing allocations shall be subject to the
related A/B
Intercreditor Agreement. Notwithstanding the foregoing, all amounts
payable or
reimbursable to the Master Servicer, the Special Servicer, the
Trustee or the
Fiscal Agent in respect of the predecessor Mortgage Loan as of the
date of the
related REO Acquisition, including, without limitation, any unpaid
Servicing
Fees and any unreimbursed Servicing Advances and P&I Advances,
together with any
interest accrued and payable to the Master Servicer, the Special
Servicer, the
Trustee or the Fiscal Agent in respect of such Servicing Advances
and P&I
Advances in accordance with Sections 3.03(d) and 4.03(d), shall
continue to be
payable or reimbursable to the Master Servicer, the Special
Servicer, the
Trustee or the Fiscal Agent, as the case may be, in respect of an
REO Mortgage
Loan pursuant to Section 3.05(a).
67
"REO Property": A Mortgaged Property acquired on behalf and in the
name of the Trustee for the benefit of the Certificateholders (or,
in the case
of an A/B REO Property, the Certificateholders and the related
B-Noteholders(s))
through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in
accordance with applicable law in connection with the default or
imminent
default of a Serviced Loan. Any A/B REO Property shall be an REO
Property.
"REO Revenues": All income, rents, profits and proceeds derived
from
the ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Reporting Period": The Trust's fiscal year 2005, together with any
subsequent fiscal year for the Trust, if as of the beginning of
such subsequent
fiscal year, the Registered Certificates are held (directly or, in
the case of
Registered Certificates held in book-entry form, through the
Depository) by at
least 300 Holders and/or Depository Participants having accounts
with the
Depository.
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1
attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal
Mortgage
Loan, an Appraisal of the related Mortgaged Property from an
Independent
Appraiser selected by the Special Servicer.
"Required Appraisal Date": With respect to any Mortgage Loan that
is
not otherwise a Required Appraisal Mortgage Loan, the earliest date
on which any
of the items specified in clauses (i) through (vi) of the
definition of Required
Appraisal Mortgage Loan occurs.
"Required Appraisal Mortgage Loan": Each Mortgage Loan (i) that is
60
days or more delinquent in respect of any Periodic Payments (other
than a
Balloon Payment), (ii) that becomes an REO Mortgage Loan (in which
case
references to "Required Appraisal Mortgage Loan" shall also include
such REO
Mortgage Loan), (iii) that has been modified by the Special
Servicer to reduce
the amount of any Periodic Payment (other than a Balloon Payment),
(iv) with
respect to which a receiver is appointed and continues in such
capacity in
respect of the related Mortgaged Property, (v) with respect to
which a Mortgagor
declares bankruptcy or with respect to which the related Mortgagor
is subject to
a bankruptcy proceeding or (vi) with respect to which any Balloon
Payment on
such Mortgage Loan has not been paid by the 60th day after its
scheduled
maturity date unless the Master Servicer has, on or prior to 60
days after the
due date of such Balloon Payment, received written evidence from an
institutional lender of such lender's binding commitment to
refinance such
Mortgage Loan within 120 days after the Due Date of such Balloon
Payment
(provided that if such refinancing does not occur during such time
specified in
the commitment, the related Mortgage Loan will immediately become a
Required
68
Appraisal Mortgage Loan); provided, however, that a Required
Appraisal Mortgage
Loan will cease to be a Required Appraisal Mortgage Loan:
(a) with respect to the circumstances described in clauses (i) and
(iii) above, when the related Mortgagor has made three consecutive
full and
timely Periodic Payments under the terms of such Mortgage Loan (as
such
terms may be changed or modified in connection with a bankruptcy or
similar
proceeding involving the related Mortgagor or by reason of a
modification,
waiver or amendment granted or agreed to by the Special Servicer
pursuant
to Section 3.20); and
(b) with respect to the circumstances described in clauses (iv),
(v)
and (vi) above, when such circumstances cease to exist in the good
faith
reasonable judgment of the Special Servicer and in accordance with
the
Servicing Standard, but, with respect to any bankruptcy or
insolvency
proceedings described in clauses (iv) and (v), no later than the
entry of
an order or decree dismissing such proceeding, and with respect to
the
circumstances described in clause (vi) above, no later than the
date that
the Special Servicer agrees to an extension pursuant to Section
3.20
hereof;
so long as at that time no circumstance identified in clauses (i)
through (vi)
above exists that would cause the subject Mortgage Loan to continue
to be
characterized as a Required Appraisal Mortgage Loan.
For purposes of this Agreement, the term "Required Appraisal
Mortgage
Loan", insofar as it relates to the Carolina Place Mortgage Loan
shall mean the
Carolina Place Loan Combination, which A/B Loan Combination shall
therefore be
considered a single "Mortgage Loan" for the purposes of this
"Required Appraisal
Mortgage Loan" definition.
"Required Appraisal Value": An amount equal to 90% of the Appraised
Value (net of any prior liens and estimated liquidation expenses)
of the
Mortgaged Property related to the subject Required Appraisal
Mortgage Loan as
determined by a Required Appraisal or letter update or internal
valuation, if
applicable; provided that for purposes of determining any Appraisal
Reduction
Amount in respect of such Required Appraisal Mortgage Loan, such
Appraisal
Reduction Amount shall be amended annually to reflect the Required
Appraisal
Value determined pursuant to any Required Appraisal or letter
update or internal
valuation, if applicable, of a Required Appraisal conducted
subsequent to the
original Required Appraisal performed pursuant to Section 3.09(a);
and provided,
further, that for purposes of determining any Appraisal Reduction
Amount in
respect of such Required Appraisal Mortgage Loan, such Appraised
Value may be
reduced by the Special Servicer pursuant to Section 3.09(a).
"Reserve Account": The account or accounts created and maintained
pursuant to Section 3.03(f).
"Reserve Funds": With respect to any Serviced Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on
behalf of the
mortgagee representing reserves for environmental remediation,
repairs, capital
improvements, tenant improvements and/or leasing commissions with
respect to the
related Mortgaged Property.
69
"Responsible Officer": When used with respect to (i) the initial
Trustee, any officer or assistant officer in the Global
Securitization Trust
Services Group of the initial Trustee, and (ii) any successor
trustee, any
officer or assistant officer in the corporate trust department of
the successor
trustee, or any other officer or assistant officer of the successor
trustee
customarily performing functions similar to those performed by any
of the above
designated officers to whom a particular matter is referred by the
successor
trustee because of such officer's knowledge of and familiarity with
the
particular subject.
"Restricted Servicer Reports": Each of the CMSA Servicer Watchlist,
CMSA Operating Statement Analysis, CMSA NOI Adjustment Worksheet
and CMSA
Comparative Financial Status Report. If a Restricted Servicer
Report is filed
with the Commission, it shall thereafter be an Unrestricted
Servicer Report.
"Rule 144A Global Certificate": With respect to any Class of
Book-Entry Non-Registered Certificates, one or collectively more
global
certificates of such Class registered in the name of the Depository
or its
nominee, in definitive, fully registered form without interest
coupons, none of
which certificates bears a Regulation S Legend, and each of which
certificates
has a Rule 144A CUSIP number.
"S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc., or its successor in interest. If
neither such
Rating Agency nor any successor remains in existence, "S&P"
shall be deemed to
refer to such other nationally recognized statistical rating agency
or other
comparable Person designated by the Depositor, notice of which
designation shall
be given to the Trustee, the Master Servicer and the Special
Servicer, and
specific ratings of S&P herein referenced shall be deemed to
refer to the
equivalent ratings of the party so designated.
"Sarbanes-Oxley Act": The Sarbanes-Oxley Act of 2002.
"Scheduled Payment": With respect to any Serviced Loan, for any Due
Date following the Cut-off Date as of which it is outstanding, the
scheduled
Periodic Payment of principal and interest (other than Additional
Interest) on
such Serviced Loan that is or would be, as the case may be, payable
by the
related Mortgagor on such Due Date under the terms of the related
Mortgage Note
as in effect on the Closing Date, without regard to any subsequent
change in or
modification of such terms in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Serviced Loan granted or agreed to by the Special Servicer pursuant
to Section
3.20 or acceleration of principal by reason of default, and
assuming that each
prior Scheduled Payment has been made in a timely manner; provided,
however,
that if the related loan documents for an A/B Loan Combination
provide for a
single monthly debt service payment for such A/B Loan Combination,
then the
Scheduled Payment for each Serviced Loan comprising such A/B Loan
Combination
for any Due Date shall be that portion of the monthly debt service
payment for
such A/B Loan Combination and such Due Date that is, in accordance
with the
related loan documents and/or the related A/B Intercreditor
Agreement, in the
absence of default, allocable to interest at the related Mortgage
Rate on and/or
principal of each such Serviced Loan comprising the subject A/B
Loan
Combination.
70
"Section 302 Requirements": As defined in Section 8.16(b).
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class A-1, Class A-2, Class A-3, Class
A-SB,
Class A-4, Class A-1A, Class XC or Class XP Certificate.
"Senior Class A Certificate": Any Class A-1, Class A-2, Class A-3,
Class A-SB, Class A-4 or Class A-1A Certificate.
"Sequential Pay Certificate": Any Principal Balance Certificate
(other
than a Class CP Certificate).
"Serviced Loan": Any Mortgage Loan or, if and when it is serviced
hereunder, any B-Note Loan, as applicable. The Carolina Place
B-Note Loans shall
constitute Serviced Loans under this Agreement for so long as the
Carolina Place
Mortgage Loan is part of the Trust Fund.
"Servicer Fee Amount": With respect to each Sub-Servicer and any
date
of determination, the aggregate of the products obtained by
multiplying, for
each Serviced Loan serviced by such Sub-Servicer, (a) the Stated
Principal
Balance of such Serviced Loan as of the end of the immediately
preceding
Collection Period and (b) the servicing fee rate specified in the
related
Sub-Servicing Agreement for such Serviced Loan. With respect to the
Master
Servicer and any date of determination, the aggregate of the
products obtained
by multiplying, for each Serviced Loan (a) the Stated Principal
Balance of such
Serviced Loan as of the end of the immediately preceding Collection
Period and
(b) the difference between the Master Servicing Fee Rate for such
Serviced Loan
over the servicing fee rate (if any) applicable to such Serviced
Loan as
specified in any Sub-Servicing Agreement related to such Serviced
Loan.
"Servicer Reports": Any of the Restricted Servicer Reports, the
Unrestricted Servicer Reports, the CMSA Loan Setup File, the CMSA
Loan Periodic
Update File, the CMSA Financial File, the CMSA Property File and
the CMSA
Advance Recovery Report.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out
of
pocket" costs and expenses incurred by or on behalf of the Master
Servicer, the
Special Servicer, the Trustee or the Fiscal Agent in connection
with the
servicing of a Serviced Loan, or in connection with the
administration of any
REO Property, including, but not limited to, the cost of (a)
compliance with the
obligations of the Master Servicer and the Special Servicer, if
any, set forth
in Section 3.02 and Section 3.03(c), (b) the preservation,
insurance,
restoration, protection and management of a Mortgaged Property,
including the
cost of any "forced placed" insurance policy purchased by the
Master Servicer to
the extent such cost is allocable to a particular Mortgaged
Property that the
Master Servicer or the Special Servicer is required to cause to be
insured
pursuant to Section 3.07(a), (c) obtaining any Insurance Proceeds
or any
Liquidation Proceeds of the nature described in clauses (i) through
(v) of the
definition of "Liquidation Proceeds," (d) any
71
enforcement or judicial proceedings with respect to a Mortgaged
Property,
including, without limitation, foreclosures, (e) any Required
Appraisal or other
appraisal expressly required or permitted to be obtained hereunder,
(f) the
operation, management, maintenance and liquidation of any REO
Property,
including, without limitation, appraisals and compliance with
Section 3.16(a)
(to the extent not covered by available funds in the applicable REO
Account) and
Section 3.20(g) (to the extent not paid by the related Mortgagor)
and (g)
compliance with the obligations of the Master Servicer or the
Trustee set forth
in Section 2.03(a) or (b). Notwithstanding anything to the
contrary, "Servicing
Advances" shall not include allocable overhead of the Master
Servicer or the
Special Servicer, such as costs for office space, office equipment,
supplies and
related expenses, employee salaries and related expenses and
similar internal
costs and expenses, general and administrative costs of the Master
Servicer and
the Special Servicer, costs or expenses incurred by any such party
in connection
with its purchase of a Serviced Loan or REO Property, or costs or
expenses
expressly required to be borne by the Master Servicer or Special
Servicer
without reimbursement pursuant to the terms of this Agreement.
"Servicing Fees": With respect to each Serviced Loan and REO Loan,
the
Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents, certificates, opinions and reports
(other than documents required to be part of the related Mortgage
File)
delivered by the related Mortgagor in connection with, or relating
to the
origination and servicing of, any Serviced Loan that are reasonably
required for
the ongoing administration of the Serviced Loan including
management agreements,
cash management agreements, lockbox agreements, franchise
agreements, franchise
comfort letters (and evidence of required notification of
transfer), appraisals,
surveys, engineering reports, environmental reports, operation and
maintenance
(O&M) plans, financial statements, leases, rent rolls and
tenant estoppels.
"Servicing Officer": Any officer or employee of the Master Servicer
or
the Special Servicer involved in, or responsible for, the
administration and
servicing of the Serviced Loans, whose name and specimen signature
appear on a
list of servicing officers furnished by such party to the Trustee
and the
Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing Retained Bid": As defined in Section 7.01(c).
"Servicing Standard": With respect to the Master Servicer or the
Special Servicer, as applicable, the servicing and administration
of the
Serviced Loans and any REO Properties for which it is responsible
hereunder: (a)
in the same manner in which, and with the same care, skill,
prudence and
diligence with which, the Master Servicer or the Special Servicer,
as the case
may be, generally services and administers similar mortgage loans
with similar
borrowers and/or similar foreclosure properties, as applicable, (i)
for other
third parties, giving due consideration to customary and usual
standards of
practice of prudent institutional commercial mortgage loan
servicers servicing
and administering mortgage loans and/or foreclosure properties for
third
parties, as applicable, or (ii) held in its own portfolio,
whichever
72
standard is higher; (b) with a view to (i) the timely collection of
all Periodic
Payments due on each such Serviced Loan or, if any such Serviced
Loan shall come
into and continue in default, the maximization of the recovery on
such Serviced
Loan on a net present value basis (the relevant discounting of
anticipated
collections to be performed at the related Mortgage Rate) and (ii)
the best
interests (as determined by the Master Servicer or Special
Servicer, as
applicable, in its reasonable and good faith judgment) of the
Certificateholders
(as a collective whole) and the Trust Fund (or, in the case of any
A/B Loan
Combination, the Certificateholders, the Trust Fund and the related
B-Noteholder(s) (as a collective whole), taking into account, to
the extent
consistent with the related A/B Intercreditor Agreement and the
related Mortgage
Loan documents, the subordinate nature of the related B-Note
Loan(s)); and (c)
without regard to (i) any relationship that the Master Servicer or
the Special
Servicer, as the case may be, or any Affiliate thereof may have
with the related
Mortgagor, the Depositor, any Mortgage Loan Seller or any other
party to the
transactions contemplated by this Agreement or any Affiliate
thereof; (ii) the
ownership of any Certificate (or other interest in any Serviced
Loan) by the
Master Servicer or the Special Servicer, as the case may be, or by
any Affiliate
thereof; (iii) the right of the Master Servicer or the Special
Servicer, as the
case may be, to receive compensation or other fees for its services
rendered
pursuant to this Agreement; (iv) the obligations of the Master
Servicer to make
Advances; (v) the ownership, servicing or management by the Master
Servicer or
the Special Servicer or any Affiliate thereof for others of any
other mortgage
loans or mortgaged property; (vi) any obligation of the Master
Servicer or any
Affiliate of the Master Servicer to repurchase or substitute a
Mortgage Loan as
a Mortgage Loan Seller; (vii) any obligation of the Master Servicer
or any
Affiliate of the Master Servicer to cure a breach of a
representation and
warranty with respect to a Mortgage Loan; and (viii) any debt the
Master
Servicer or Special Servicer or any Affiliate of either has
extended to any
Mortgagor or any Affiliate of such Mortgagor.
"Servicing Transfer Event": With respect to any Serviced Loan, the
occurrence of any of the events described in clauses (a) through
(g) of the
definition of "Specially Serviced Loan".
"Single Certificate": For purposes of Section 4.02, a hypothetical
Regular Certificate or Class A-MFL Certificate evidencing a $1,000
denomination.
"Special Reserve Account": The separate account created and
maintained
by the Special Servicer pursuant to Section 2.02(c) and held on
behalf of the
Certificateholders and the related Mortgage Loan Seller, which
shall be entitled
substantially as follows: "Allied Capital Corporation, as Special
Servicer, on
behalf of LaSalle Bank National Association, as Trustee, in trust
for the
registered holders of Citigroup Commercial Mortgage Trust 2005-C3,
Commercial
Mortgage Pass-Through Certificates, Series 2005-C3 and [name of the
related
Mortgage Loan Seller], as their interests may appear]". Each
Special Reserve
Account shall be an Eligible Account.
"Special Servicer": Allied Capital Corporation, its successor in
interest, or any successor special servicer appointed as herein
provided.
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"Special Servicing Fee": With respect to each Specially Serviced
Loan
and REO Loan, the fee designated as such and payable to the Special
Servicer
pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced
Loan and REO Loan, 0.25% per annum.
"Specially Designated Mortgage Loan Documents": With respect to any
Mortgage Loan, the following documents collectively:
(i) the original executed Mortgage Note (or, alternatively, if the
original executed Mortgage Note has been lost, a lost note
affidavit and
indemnity with a copy of such Mortgage Note attached thereto);
(ii) an original or copy of the Mortgage (with or without recording
information);
(iii) the original or a copy of the policy or certificate of
lender's
title insurance or, if such policy has not been issued or located,
an
original or copy of an irrevocable, binding commitment (which may
be a pro
forma policy or a marked version of the policy that has been
executed by an
authorized representative of the title company or an agreement to
provide
the same pursuant to binding escrow instructions executed by an
authorized
representative of the title company) to issue such title insurance
policy;
(iv) an original or copy of any Ground Lease or ground lessor
estoppel; and
(v) a copy of any letter of credit relating to the Mortgage Loan
(with
the original thereof to be delivered to the Master Servicer);
provided that whenever the term "Specially Designated Mortgage Loan
Documents"
is used to refer to documents actually received by the Trustee or
by a Custodian
on its behalf, such term, with respect to any receipt or
certification by the
Trustee or a Custodian on its behalf for documents described in
clauses (iv) and
(v) 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.
"Specially Serviced Loan": Any Serviced Loan as to which any of the
following events have occurred (subject, however, in the case of
the Carolina
Place Loan Combination, to Section 18(a) of the Carolina Place
Co-Lender
Agreement):
(a) the related Mortgagor shall have (i) failed to make when due
any
Balloon Payment unless the Master Servicer has, on or prior to the
60th day
after the due date of such Balloon Payment, received written
evidence from
an institutional lender of such lender's binding commitment to
refinance
the subject Serviced Loan within 120 days after the due date of
such
Balloon Payment and during the interim the related Mortgagor has
continued
to make the Periodic Payment in effect prior to maturity (provided
that if
such refinancing does not occur during such time specified in the
commitment, the
74
subject Serviced Loan will immediately become a Specially Serviced
Loan),
or (ii) failed to make when due any Periodic Payment (other than a
Balloon
Payment), and such failure has continued unremedied for 60 days; or
(b) the Master Servicer or Special Servicer (in the case of the
Special Servicer, with the consent of the Controlling Class
Representative
or, in the case of the Carolina Place Loan Combination, with the
consent of
the Carolina Place Controlling Party) shall have determined, in its
good
faith reasonable judgment and in accordance with the Servicing
Standard,
based on, among other things, communications with the related
Mortgagor,
that a default in making a Periodic Payment (including a Balloon
Payment)
or any other default under the applicable loan documents that would
(with
respect to such other default) materially impair the value of the
Mortgaged
Property as security for the subject Serviced Loan or otherwise
would
materially adversely affect the interests of Certificateholders and
would
continue unremedied beyond the applicable grace period under the
terms of
the subject Serviced Loan (or, if no grace period is specified, for
60
days; provided that a default that would give rise to an
acceleration right
without any grace period shall be deemed to have a grace period
equal to
zero) is likely to occur and is likely to remain unremedied for at
least 60
days; or
(c) there shall have occurred a default (other than as described in
clause (a) above) that the Master Servicer or Special Servicer
shall have
determined, in its good faith and reasonable judgment and in
accordance
with the Servicing Standard, materially impairs the value of the
Mortgaged
Property as security for the subject Serviced Loan or otherwise
materially
adversely affects the interests of Certificateholders and that
continues
unremedied beyond the applicable grace period under the terms of
the
subject Serviced Loan (or, if no grace period is specified, for 60
days;
provided that a default that gives rise to an acceleration right
without
any grace period shall be deemed to have a grace period equal to
zero);
provided, however, that, in the event the Special Servicer
determines that
the related Mortgagor does not need to maintain terrorism insurance
as
provided in Section 3.07(a), no default related to the failure to
obtain
such insurance shall be deemed to be outstanding for purposes of
this
clause (c); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under
any
present or future federal or state bankruptcy, insolvency or
similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and
liabilities or
similar proceedings, or for the winding-up or liquidation of its
affairs,
shall have been entered against the related Mortgagor; provided
that, if
such decree or order is discharged, dismissed or stayed within 60
days it
shall not be a Specially Serviced Loan (and no Special Servicing
Fees shall
be payable); or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of
debt, marshaling of assets and liabilities or similar proceedings
of or
relating to such Mortgagor or of or relating to all or
substantially all of
its property; or
75
(f) the related Mortgagor shall admit in writing its inability to
pay
its debts generally as they become due, file a petition to take
advantage
of any applicable insolvency, bankruptcy or reorganization statute,
make an
assignment for the benefit of its creditors, or voluntarily suspend
payment
of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement
of foreclosure or similar proceedings with respect to the related
Mortgaged
Property;
provided that a Serviced Loan will cease to be a Specially Serviced
Loan when a
Liquidation Event has occurred with respect to such Serviced Loan,
when the
related Mortgaged Property has become an REO Property or, so long
as at such
time no circumstance identified in clauses (a) through (g) above
exists that
would cause such Serviced Loan to continue to be characterized as a
Specially
Serviced Loan, when:
(i) with respect to the circumstances described in clause (a)
above,
the related Mortgagor has made three consecutive full and timely
Periodic
Payments under the terms of the subject Serviced Loan (as such
terms may be
changed or modified in connection with a bankruptcy or similar
proceeding
involving the related Mortgagor or by reason of a modification,
waiver or
amendment granted or agreed to by the Special Servicer pursuant to
Section
3.20);
(ii) with respect to the circumstances described in clauses (b),
(d),
(e) and (f) above, such circumstances cease to exist in the good
faith
reasonable judgment of the Special Servicer and in accordance with
the
Servicing Standard, but, with respect to any bankruptcy or
insolvency
proceedings described in clauses (d), (e) and (f), no later than
the entry
of an order or decree dismissing such proceeding;
(iii) with respect to the circumstances described in clause (c)
above,
such default is cured; and
(iv) with respect to the circumstances described in clause (g)
above,
such proceedings are terminated.
Notwithstanding the foregoing, during any time an entire A/B Loan
Combination is serviced and administered pursuant to this Agreement
(subject,
however, in the case of the Carolina Place Loan Combination, to
Section 18(a) of
the Carolina Place Co-Lender Agreement), if a Servicing Transfer
Event exists
with respect to one Serviced Loan in such A/B Loan Combination, it
will also be
considered to exist for the other Serviced Loan(s) in such A/B Loan
Combination.
"Specially Serviced Mortgage Loan": A Mortgage Loan that is a
Specially Serviced Loan.
"Startup Day": With respect to each REMIC Pool, the day designated
as
such in Section 10.01(c).
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"State and Local Taxes": Taxes imposed by the State of New York, by
the State in which the Mortgage Files are maintained, by any of the
States in
which are located the Corporate Trust Office and/or the respective
offices of
the Master Servicer and Special Servicer responsible for servicing
and
administering the Serviced Loans and any REO Properties, and/or by
any other
state or local taxing authorities as may, by notice to the Trustee,
assert
jurisdiction over the trust fund or any portion thereof, or which,
according to
an Opinion of Counsel addressed to the Trustee, have such
jurisdiction.
"Stated Maturity Date": With respect to any Serviced Loan, the Due
Date specified in the Mortgage Note (as in effect on the Closing
Date) on which
the last payment of principal is due and payable under the terms of
the Mortgage
Note (as in effect on the Closing Date), without regard to any
change in or
modification of such terms in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Serviced Loan granted or agreed to by the Special Servicer pursuant
to Section
3.20 and, in the case of an ARD Mortgage Loan, without regard to
its Anticipated
Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan as of
any date of determination, an amount (which amount shall not be
less than zero)
equal to (x) the Cut-off Date Balance of such Mortgage Loan (or, in
the case of
a Qualified Substitute Mortgage Loan, the unpaid principal balance
thereof after
application of all principal payments due thereon on or before the
related date
of substitution, whether or not received), plus (y) any Mortgage
Deferred
Interest added to the principal balance of such Mortgage Loan prior
to the end
of the Collection Period for the then-most recent Distribution Date
coinciding
with or preceding such date of determination, minus (z) the sum of:
(i) the principal portion of each Periodic Payment due on such
Mortgage Loan after the Cut-off Date or the related date of
substitution,
as the case may be, to the extent received from the Mortgagor or
advanced
by the Master Servicer, the Trustee or the Fiscal Agent and
distributed to
Certificateholders on or before such date of determination;
(ii) all Principal Prepayments received with respect to such
Mortgage
Loan after the Cut-off Date or the related date of substitution, as
the
case may be, to the extent distributed to Certificateholders on or
before
such date of determination;
(iii) the principal portion of all Insurance Proceeds and
Liquidation
Proceeds received with respect to such Mortgage Loan after the
Cut-off Date
or the related date of substitution, as the case may be, to the
extent
distributed to Certificateholders on or before such date of
determination;
(iv) the principal portion of any Realized Loss incurred in respect
of
such Mortgage Loan prior to the end of the Collection Period for
the
then-most recent Distribution Date coinciding with or preceding
such date
of determination; and
77
(v) to the extent not otherwise included as part of the amount
described in clause (z)(iv) of this definition, any amount of
reduction in
the outstanding principal balance of such Mortgage Loan resulting
from a
Deficient Valuation that occurred prior to the end of the
Collection Period
for the then-most recent Distribution Date coinciding with or
preceding
such date of determination.
With respect to any REO Mortgage Loan, as of any date of
determination, an amount equal to (x) the Stated Principal Balance
of the
predecessor Mortgage Loan as of the date of the related REO
Acquisition, minus
(y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to such
REO Mortgage Loan on or after the date of the related REO
Acquisition, to
the extent distributed to Certificateholders on or before such date
of
determination;
(ii) the principal portion of all Insurance Proceeds, Liquidation
Proceeds and REO Revenues received with respect to such REO
Mortgage Loan,
to the extent distributed to Certificateholders on or before such
date of
determination; and
(iii) the principal portion of any Realized Loss incurred in
respect
of such REO Mortgage Loan prior to the end of the Collection Period
for the
then-most recent Distribution Date coinciding with or preceding
such date
of determination.
A Mortgage Loan or an REO Mortgage Loan shall be deemed to be part
of
the Mortgage Pool and to have an outstanding Stated Principal
Balance until the
Distribution Date on which the payments or other proceeds, if any,
received in
connection with a Liquidation Event in respect thereof are to be
(or, if no such
payments or other proceeds are received in connection with such
Liquidation
Event, would have been) distributed to Certificateholders. For
purposes of this
definition, payments or other collections of principal on or with
respect to any
Mortgage Loan or REO Mortgage Loan shall be deemed distributed to
Certificateholders as of the first Distribution Date that such
payments or other
collections of principal are (or, without regard to clause (i) of
the definition
of "Principal Distribution Amount," would have been) included in
the Principal
Distribution Amount. To the extent that principal from general
collections on
the Mortgage Pool is used to reimburse, or pay interest on,
Nonrecoverable
Advances pursuant to Section 3.05(a) hereof with respect to any
particular
Mortgage Loan or REO Mortgage Loan, and such principal amount has
not been
included as part of the Principal Distribution Amount, such
principal amount
shall nonetheless continue to be deemed to be distributed for
purposes of
calculating the Stated Principal Balance. Notwithstanding the
foregoing, if any
Mortgage Loan is paid in full, or if any Mortgage Loan or REO
Property is
liquidated or otherwise removed from the Trust Fund, commencing as
of the first
Distribution Date following the Collection Period during which such
event
occurred, the Stated Principal Balance of such Mortgage Loan or the
related REO
Mortgage Loan will be zero.
With respect to any B-Note Loan or any successor REO B-Note Loan
with
respect thereto on any date of determination, the Stated Principal
Balance shall
equal the unpaid principal balance of such B-Note Loan or the
deemed unpaid
principal balance of such successor REO B-Note Loan.
78
"Sub-Servicer": Any Person with which the Master Servicer or the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Master
Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the
other hand, relating to servicing and administration of Serviced
Loans as
provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution of
Mortgage Loans pursuant to any Mortgage Loan Purchase Agreement, an
amount equal
to the excess, if any, of the Purchase Price of the Mortgage Loan
being replaced
calculated as of the date of substitution over the Stated Principal
Balance of
the related Qualified Substitute Mortgage Loan as of the date of
substitution.
In the event that one or more Qualified Substitute Mortgage Loans
are
substituted (at the same time) for one or more deleted Mortgage
Loans, then the
Substitution Shortfall Amount shall be determined as provided in
the preceding
sentence on the basis of the aggregate Purchase Prices of the
Mortgage Loan or
Mortgage Loans being replaced and the aggregate Stated Principal
Balances of the
related Qualified Substitute Mortgage Loan or Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Swap Agreement": The 2002 ISDA (Multi-Currency Cross-Border)
Master
Agreement together with the related schedule, confirmation and any
annexes
thereto, dated as of June 28, 2005, by and among the Swap
Counterparty and the
Trustee, solely in its capacity as Trustee, on behalf of the Trust,
or any
replacement interest rate swap agreement entered into by the
Trustee in
accordance with the terms of Section 3.27.
"Swap Counterparty": Citibank, N.A. and its successors in interest
or
any swap counterparty under a replacement Swap Agreement.
"Swap Default": Any failure on the part of the Swap Counterparty
(that
continues beyond any applicable grace period under the Swap
Agreement) to (i)
make a required payment under the Swap Agreement as and when due
thereunder,
(ii) either post acceptable collateral or find an acceptable
replacement Swap
Counterparty or find an acceptable guarantor after a
Collateralization Event (as
defined in the Swap Agreement) has occurred, as required by Part
1(n)(1) of the
Schedule to the Master Agreement in the related Swap Agreement, or
(iii) find an
acceptable replacement Swap Counterparty after a Rating Agency
Trigger Event (as
defined in the Swap Agreement) has occurred, as required by Part
1(n)(3) of the
Schedule to the Master Agreement in the related Swap Agreement.
"Swap Termination Fees": Any fees, costs or expenses payable by the
Swap Counterparty to the Trust in connection with a Swap Default,
termination of
the Swap Agreement or liquidation of the Swap Agreement, as
specified in the
Swap Agreement.
"Tax Administrator": The Trustee or any Tax Administrator appointed
pursuant to Section 8.14.
79
"Tax Matters Person": With respect to each REMIC Pool, the Person
designated as the "tax matters person" of such REMIC in the manner
provided
under Treasury regulations section 1.860F-4(d) and Temporary
Treasury
regulations section 301.6231(a)(7)-1T, which Person shall be the
applicable
Plurality Class R Certificateholder.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit
(REMIC) Income
Tax Return, including Schedule Q thereto, Quarterly Notice to
Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any
successor forms,
to be filed on behalf of each REMIC Pool due to its classification
as a REMIC
under the REMIC Provisions, and the federal income tax return on
Internal
Revenue Service Form 1041 to be filed on behalf of a Grantor Trust
due to its
classification as a grantor trust under the Grantor Trust
Provisions, together
with any and all other information, reports or returns that may be
required to
be furnished to the Certificateholders or filed with the Internal
Revenue
Service under any applicable provisions of federal tax law or any
other
governmental taxing authority under applicable State and Local Tax
laws.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust": The common law trust created hereunder.
"Trust Fund": Collectively, all of the assets of the respective
Grantor Trusts and the respective REMIC Pools.
"Trustee": LaSalle Bank National Association, its successor in
interest, or any successor trustee appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and REO Mortgage
Loan for any Distribution Date, an amount equal to 1/12 of the
product of (a)
the Trustee Fee Rate, multiplied by (b) the Stated Principal
Balance of such
Mortgage Loan or REO Mortgage Loan, as the case may be, outstanding
immediately
following the prior Distribution Date (or, in the case of the
initial
Distribution Date, as of the Closing Date).
"Trustee Fee Rate": 0.0015% per annum.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in any
relevant
jurisdiction.
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"Uncertificated Accrued Interest": With respect to any Loan REMIC
Regular Interest for any Distribution Date, one month's interest at
the Loan
REMIC Remittance Rate applicable to such Loan REMIC Regular
Interest for such
Distribution Date, accrued on the related Loan REMIC Principal
Balance
outstanding immediately prior to such Distribution Date; and, with
respect to
any REMIC I Regular Interest for any Distribution Date, one month's
interest at
the REMIC I Remittance Rate applicable to such REMIC I Regular
Interest for such
Distribution Date, accrued on the related REMIC I Principal Balance
outstanding
immediately prior to such Distribution Date. Uncertificated Accrued
Interest
shall be calculated on a 30/360 Basis and, with respect to any Loan
REMIC
Regular Interest or REMIC I Regular Interest for any Distribution
Date, shall be
deemed to accrue during the calendar month preceding the month in
which such
Distribution Date occurs.
"Uncertificated Distributable Interest": With respect to any Loan
REMIC Regular Interest for any Distribution Date, the
Uncertificated Accrued
Interest in respect of such Loan REMIC Regular Interest for such
Distribution
Date, reduced (to not less than zero) by the sum of (i) the portion
of any Net
Aggregate Prepayment Interest Shortfall for such Distribution Date
attributable
to the Carolina Place Mortgage Loan that is allocable to such Loan
REMIC Regular
Interest in accordance with Section 4.04(f) and (ii) the portion of
any Mortgage
Deferred Interest attributable to the Carolina Place Mortgage Loan
that is
allocable to such Loan REMIC Regular Interest on such Distribution
Date in
accordance with Section 4.04(d). With respect to any REMIC I
Regular Interest
for any Distribution Date, the Uncertificated Accrued Interest in
respect of
such REMIC I Regular Interest for such Distribution Date, reduced
(to not less
than zero) by the sum of (i) the portion of any Net Aggregate
Prepayment
Interest Shortfall for such Distribution Date that is allocable to
such REMIC I
Regular Interest in accordance with Section 4.04(f) and (ii) the
portion of any
Mortgage Deferred Interest that is allocable to such REMIC I
Regular Interest on
such Distribution Date in accordance with Section 4.04(d).
"Underwriter": Each of Citigroup Global Markets Inc., IXIS
Securities
North America Inc., Deutsche Bank Securities Inc. and Wachovia
Capital Markets,
LLC or, in each case, its successor in interest.
"United States Tax Person": A citizen or resident of the United
States, a corporation or partnership (including an entity treated
as a
corporation or partnership for federal income tax purposes) created
or organized
in, or under the laws of the United States, any State thereof or
the District of
Columbia unless in the case of a partnership, Treasury regulations
are adopted
that provide otherwise, an estate whose income is includable in
gross income for
United States federal income tax purposes regardless of its source,
or a trust
if a court within the United States is able to exercise primary
supervision over
the administration of the trust and one or more United States Tax
Persons have
the authority to control all substantial decisions of the trust,
all within the
meaning of Section 7701(a) (30) of the Code (or, to the extent
provided in
applicable Treasury regulations, certain trusts in existence on
August 20, 1996,
that are eligible to elect to be treated as United States Tax
Persons).
"United States Securities Person": Any "U.S. person" as defined in
Rule 902(k) of Regulation S.
81
"Unrestricted Servicer Reports": Each of the CMSA Delinquent Loan
Status Report, CMSA Historical Loan Modification and Corrected
Mortgage Loan
Report, CMSA Loan Level Reserve/LOC Report, CMSA Historical
Liquidation Report,
CMSA REO Status Report and CMSA Advance Recovery Report and, from
and after its
filing with the Commission, any item deemed to be an Unrestricted
Servicer
Report in accordance with the definition of "Restricted Servicer
Reports".
"USAP": The Uniform Single Attestation Program for Mortgage
Bankers.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times
during the term
of this Agreement, 100% of the Voting Rights shall be allocated
among the
Holders of the Regular Certificates and the Class A-MFL
Certificates. Ninety-six
percent (96%) of the Voting Rights shall be allocated among the
Class A-1, Class
A-2, Class A-3, Class A-SB, Class A-4, Class A-1A, Class A-MFL,
Class A-M, Class
A-J, Class B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J,
Class K, Class L, Class M, Class N, Class O, Class P, Class CP-1,
Class CP-2 and
Class CP-3 Certificates in proportion to the respective Class
Principal Balances
of such Classes of Certificates; provided that, solely for the
purpose of
determining the respective Voting Rights of the various Classes of
Principal
Balance Certificates, the aggregate Appraisal Reduction Amount
allocated to the
respective Classes of the Principal Balance Certificates in
accordance with
Section 4.04(e) shall be treated as Realized Losses with respect to
the
calculation of the Certificate Principal Balances thereof; and
provided,
further, that the aggregate Appraisal Reduction Amount shall not
reduce the
Class Principal Balance of any Class for purposes of determining
the Controlling
Class, the Controlling Class Representative or the Majority
Controlling Class
Certificateholder. Four percent (4%) in the aggregate of the Voting
Rights shall
be allocated to the Class XC and Class XP Certificates in
proportion to the
respective Class Notional Amounts of such Classes of Certificates.
The Class Y
and Class R Certificates shall have no voting rights. Voting Rights
allocated to
a Class of Certificateholders shall be allocated among such
Certificateholders
in standard proportion to the Percentage Interests evidenced by
their respective
Certificates. In addition, if either the Master Servicer or the
Special Servicer
is the holder of any Certificate, neither of the Master Servicer or
Special
Servicer, in its capacity as a Certificateholder, shall have Voting
Rights with
respect to matters concerning compensation affecting the Master
Servicer or the
Special Servicer.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to
any
Distribution Date, the rate per annum equal to the weighted
average, expressed
as a percentage and rounded to six decimal places, of the
respective Net
Mortgage Pass-Through Rates applicable to the Mortgage Loans and
any REO
Mortgage Loans for such Distribution Date, weighted on the basis of
their
respective Stated Principal Balances (or, in the case of the
Carolina Place
Mortgage Loan or any successor REO Mortgage Loan with respect
thereto, the Loan
REMIC Principal Balance of Loan REMIC Regular Interest CP-I)
immediately
following the preceding Distribution Date (or, in the case of the
initial
Distribution Date, as of the Closing Date).
"Workout Fee": With respect to each Corrected Loan, the fee
designated
as such and payable to the Special Servicer pursuant to the second
paragraph of
Section 3.11(c).
82
"Workout Fee Rate": 1.0%.
"Yield Maintenance Charge": Payments paid or payable, as the
context
requires, on a Serviced Loan as the result of a Principal
Prepayment thereon,
not otherwise due thereon in respect of principal or interest,
which have been
calculated (based on scheduled payments on such Serviced 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
Serviced Loan, the Master Servicer shall be required to follow the
terms and
provisions contained in the applicable Mortgage Note; provided,
however, in the
event the particular Mortgage Note shall not specify the U.S.
Treasuries which
shall be used in determining the discount rate or the reinvestment
yield to be
applied in such calculation, the Master Servicer shall be required
to use those
U.S. Treasuries having maturity dates most closely approximating
the maturity of
such Serviced Loan. Accordingly if either no U.S. Treasury issue,
or more than
one U.S. Treasury issue, shall coincide with the term over which
the Yield
Maintenance Charge shall be calculated (which depending on the
applicable
Mortgage Note is based on the remaining average life of the
Serviced Loan or the
actual term remaining through the Maturity Date), the Master
Servicer shall use
the U.S. Treasury whose reinvestment yield is the lowest, with such
yield being
based on the bid price for such issue as published in The Wall
Street Journal on
the date that is fourteen (14) days prior to the date that the
Yield Maintenance
Charge shall become due and payable (or, if such bid price is not
published on
that date, the next preceding date on which such bid price is so
published) and
converted to a monthly compounded nominal yield. The monthly
compounded nominal
yield ("MEY") is derived from the reinvestment yield or discount
rate and shall
be defined as MEY = (12X {(1+"BEY"/2)^1/6}-1) where BEY is defined
as the U.S.
Treasury Reinvestment Yield which is in decimal form and not in
percentage, and
1/6 is the exponential power to which a portion of the equation is
raised. For
example, using a BEY of 5.50%, the MEY = (12 X {(1+
.055/2)^0.16667}-1) where
.055 is the decimal version of the percentage 5.5% and 0.16667 is
the decimal
version of the exponential power. The MEY in the above calculation
is 5.44%.
SECTION 1.02 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided
or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as well
as
the singular, and the use of any gender herein shall be deemed to
include
the other gender;
(ii) accounting terms not otherwise defined herein have the
meanings
assigned to them in accordance with GAAP as in effect from time to
time;
(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;
83
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same
Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and
other words of similar import refer to this Agreement as a whole
and not to
any particular provision; and
(vi) the terms "include" and "including" shall mean without
limitation
by reason of enumeration.
SECTION 1.03 Calculation of LIBOR.
(a) The initial value of LIBOR shall be 3.32% per annum. Such value
of
LIBOR shall be utilized in calculating (i) the Class A-MFL Floating
Swap Payment
to be made on the Class A-MFL Swap Payment Date in July 2005 and
(ii) the
Pass-Through Rate with respect to the Class A-MFL Certificates for
the
Distribution Date in July 2005.
(b) The value of LIBOR applicable to the calculation of the Class
A-MFL Floating Swap Payment to be made on the Class A-MFL Swap
Payment Date in
any particular calendar month subsequent to July 2005, as well as
the
calculation of the Pass-Through Rate with respect to the Class
A-MFL
Certificates for the Distribution Date in such calendar month
(provided that no
Class A-MFL Distribution Conversion is then in effect), shall be
determined by
the Trustee (and promptly reported to the Swap Counterparty) on the
LIBOR
Determination Date in the preceding calendar month in accordance
with the
following methodology: LIBOR shall equal the rate for deposits in
U.S. Dollars,
for a period equal to one month, which appears on the Dow Jones
Market Service
(formerly Telerate) Page 3750 as of 11:00 a.m., London time, on the
applicable
LIBOR Determination Date. If that rate does not appear on Dow Jones
Market
Service Page 3750, LIBOR will be determined on the basis of the
rates at which
deposits in U.S. Dollars are offered by any five major reference
banks in the
London interbank market selected by the Trustee to provide that
bank's offered
quotation of such rates at approximately 11:00 a.m., London time,
on the
applicable LIBOR Determination Date to prime banks in the London
interbank
market for a period of one month, commencing on the first
Distribution Date
following the applicable LIBOR Determination Date and in an amount
that is
representative for a single such transaction in the relevant market
at the
relevant time. The Trustee shall request the principal London
office of any five
major reference banks in the London interbank market selected by
the Trustee to
provide a quotation of those rates, as offered by each such bank.
If at least
two such quotations are provided, LIBOR will be the arithmetic mean
of the
quotations. If fewer than two quotations are provided as requested,
LIBOR will
be the arithmetic mean of the rates quoted by major banks in New
York City
selected by the Trustee, at approximately 11:00 a.m., New York City
time, on the
applicable LIBOR Determination Date for loans in U.S. Dollars to
leading
European banks for a period equal to one month, commencing on the
applicable
LIBOR Determination Date and in an amount that is representative
for a single
such transaction in the relevant market at the relevant time. The
determination
of LIBOR by the Trustee will be binding absent manifest error.
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish a common law trust under the laws of
the State of
New York, designated as "Citigroup Commercial Mortgage Trust
2005-C3", and does
hereby assign, sell, transfer, set over and otherwise convey to the
Trustee, in
trust, without recourse, for the benefit of the Certificateholders
(and for the
benefit of the other parties to this Agreement as their respective
interests may
appear) all the right, title and interest of the Depositor, in, to
and under (i)
the Mortgage Loans and all documents included in the related
Mortgage Files and
Servicing Files, (ii) the rights of the Depositor under Sections 2,
3 and 9
(and, to the extent relevant to the foregoing, Sections 11, 12, 13,
14, 16, 17,
18, 19 and 21) of each of the Mortgage Loan Purchase Agreements,
(iii) the
rights of the Depositor under each A/B Intercreditor Agreement and
(iv) all
other assets included or to be included in the Trust Fund. Such
assignment
includes all interest and principal received or receivable on or
with respect to
the Mortgage Loans and due after the Cut-off Date and, in the case
of each
A-Note Mortgage Loan, is subject to the provisions of the
corresponding A/B
Intercreditor Agreement. The Trustee, on behalf of the Trust,
assumes the rights
and obligations of the holder of the Mortgage Note for each A-Note
Mortgage Loan
under each A/B Intercreditor Agreement; provided that the Master
Servicer and
the Special Servicer, as the case may be, shall, as further set
forth in Article
III, perform the servicing obligations of the holder of the
Mortgage Note for
each A-Note Mortgage Loan under each A/B Intercreditor Agreement.
The transfer
of the Mortgage Loans and the related rights and property
accomplished hereby is
absolute and, notwithstanding Section 11.07, is intended by the
parties to
constitute a sale.
(b) In connection with the Depositor's assignment pursuant to
Section
2.01(a) above the Depositor shall direct, and hereby represents and
warrants
that it has directed, the Mortgage Loan Sellers pursuant to the
applicable
Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be
delivered to and deposited with, the Trustee or a Custodian
appointed thereby
(with a copy to the Master Servicer and Special Servicer), on or
before the
Closing Date, the Mortgage File for each Mortgage Loan so assigned
and the
Servicing File to the Master Servicer. The Special Servicer may
request the
Master Servicer to deliver a copy of the Servicing File for any
Mortgage Loan
(other than a Specially Serviced Mortgage Loan) at the expense of
the Special
Servicer. None of the Trustee, any Custodian, the Master Servicer
or the Special
Servicer shall be liable for any failure by any Mortgage Loan
Seller or the
Depositor to comply with the document delivery requirements of the
applicable
Mortgage Loan Purchase Agreement and this Section 2.01(b).
(c) If any Mortgage Loan Seller cannot deliver, or cause to be
delivered, on the Closing Date, as to any Mortgage Loan, any of the
documents
and/or instruments referred to in clauses (ii), (iii), (vi) (if
recorded) and
(viii) of the definition of "Mortgage File," with evidence of
recording or
filing, as applicable, thereon, solely because of a delay caused by
the
85
public recording office or filing office, as applicable, where such
document or
instrument has been delivered for recordation or filing, as the
case may be, the
delivery requirements of the related Mortgage Loan Purchase
Agreement and
Section 2.01(b) shall be deemed to have been satisfied as to such
non-delivered
document or instrument, and such non-delivered document or
instrument shall be
deemed to have been included in the Mortgage File; provided that a
photocopy of
such non-delivered document or instrument (certified by the
applicable Mortgage
Loan Seller to be a true and complete copy of the original thereof
submitted for
recording) is delivered to the Trustee or a Custodian appointed
thereby on or
before the Closing Date, and either the original of such
non-delivered document
or instrument, or a photocopy thereof, with evidence of recording
or filing, as
applicable, thereon, is delivered to the Trustee or such Custodian
within 120
days of the Closing Date (or within such longer period after the
Closing Date as
the Trustee may consent to, which consent shall not be unreasonably
withheld so
long as the applicable Mortgage Loan Seller is, in good faith,
attempting to
obtain from the appropriate county recorder's office such original
or
photocopy). If the applicable Mortgage Loan Seller cannot deliver,
or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or
instruments
referred to in clauses (ii), (iii), (vi) (if recorded) and (viii)
of the
definition of "Mortgage File," with evidence of recording or
filing, as
applicable, thereon, for any other reason, including, without
limitation, that
such non-delivered document or instrument has been lost, the
delivery
requirements of the applicable Mortgage Loan Purchase Agreement and
Section
2.01(b) shall be deemed to have been satisfied as to such
non-delivered document
or instrument and such non-delivered document or instrument shall
be deemed to
have been included in the Mortgage File; provided that a photocopy
of such
non-delivered document or instrument (with evidence of recording or
filing, as
applicable, thereon) is delivered to the Trustee or a Custodian
appointed
thereby on or before the Closing Date.
If, on the Closing Date as to any Mortgage Loan, the applicable
Mortgage Loan Seller does not deliver in complete and, if
applicable, recordable
form (except for any missing recording information and, if
delivered in blank,
the name of the assignee) any one of the assignments in favor of
the Trustee
referred to in clause (iv) or (v) of the definition of "Mortgage
File," the
applicable Mortgage Loan Seller may provisionally satisfy the
delivery
requirements of the related Mortgage Loan Purchase Agreement and
Section)
2.01(b) by delivering with respect to such Mortgage Loan on the
Closing Date an
omnibus assignment of such Mortgage Loan; provided that all
required original
assignments with respect to such Mortgage Loan in fully complete
and, if
applicable, recordable form (except for any missing recording
information and,
if delivered in blank, the name of the assignee) shall be delivered
to the
Trustee or its Custodian within 120 days of the Closing Date (or
within such
longer period as the Trustee in its discretion may permit).
(d) The Trustee shall, for a fee paid to the Trustee by the related
Mortgage Loan Seller on the Closing Date as to each Mortgage Loan
sold thereby
to the Depositor, promptly (and in any event, as to any Mortgage
Loan, within 90
days following the latest of (i) the Closing Date, (ii) the
delivery of all
relevant related assignments and UCC Financing Statements to the
Trustee, and
(iii) the date on which the Trustee receives, with respect to the
original
recorded or filed documents relating to such assignments and UCC
Financing
Statements, all necessary recording and filing information required
for the
recording or filing of such assignments and UCC Financing
Statements) complete
(if and to the extent necessary) and
86
cause to be submitted for recording or filing, as the case may be,
in the
appropriate public office for real property records or UCC
Financing Statements,
as appropriate and to the extent timely delivered to the Trustee in
final,
recordable form, each assignment of Mortgage, assignment of
Assignment of Leases
and any other recordable documents (to the extent the Trustee has
actual
knowledge that such documents are to be recorded) relating to each
such Mortgage
Loan, in favor of the Trustee referred to in clause (iv)(A), (B)
and (C),
respectively, of the definition of "Mortgage File" and each
assignment of a UCC
Financing Statement in favor of the Trustee and so delivered to the
Trustee and
referred to in clause (viii) of the definition of "Mortgage File."
Each such
assignment of recordable documents shall reflect that the recorded
original
should be returned by the public recording office to the Trustee or
its designee
following recording, and each such UCC Financing Statement
assignment shall
reflect that the file copy thereof should be returned to the
Trustee or its
designee following filing; provided that in those instances where
the public
recording office retains the original assignment of Mortgage or
assignment of
Assignment of Leases, the Trustee shall obtain therefrom a
certified copy of the
recorded original, at the expense of the related Mortgage Loan
Seller. If any
such document or instrument is lost or returned unrecorded or
unfiled, as the
case may be, because of a defect therein, the Trustee shall direct
the related
Mortgage Loan Seller pursuant to the applicable Mortgage Loan
Purchase Agreement
to promptly prepare or cause to be prepared a substitute therefor
or cure such
defect, as the case may be, and thereafter the Trustee shall upon
receipt
thereof cause the same to be duly recorded or filed, as
appropriate. Upon
request, the Trustee shall forward to the Master Servicer a copy of
each of the
aforementioned recorded assignments to the extent that the Trustee
has received
a copy thereof and to the extent not previously provided.
(e) All documents and records in the Servicing File in possession
of
the Depositor or the Mortgage Loan Sellers (except draft documents,
attorney-client privileged communications and internal
correspondence, credit
underwriting or due diligence analyses, credit committee briefs or
memoranda or
other internal approval documents or data or internal worksheets,
memoranda,
communications or evaluations and other underwriting analysis of
the Mortgage
Loan Sellers) that relate to, and are necessary for the servicing
and
administration of, the Mortgage Loans and that are not required to
be a part of
a Mortgage File in accordance with the definition thereof
(including any
original letters of credit), together with all Escrow Payments and
Reserve
Accounts in the possession thereof, shall be delivered to the
Master Servicer or
such other Person as may be directed by the Master Servicer (at the
expense of
the applicable Mortgage Loan Seller) on or before the Closing Date
and shall be
held by the Master Servicer on behalf of the Trustee in trust for
the benefit of
the Certificateholders; provided, however, the Master Servicer
shall have no
responsibility for holding documents created or maintained by the
Special
Servicer hereunder and not delivered to the Master Servicer.
(f) In connection with the Depositor's assignment pursuant to
Section
2.01(a) above, the Depositor shall deliver to the Trustee and the
Master
Servicer on or before the Closing Date and hereby represents and
warrants that
it has delivered a copy of a fully executed counterpart of each
Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing
Date.
(g) Under generally accepted accounting principles in the United
States, upon the sale of Certificates representing at least 10% of
the fair
value of all the Certificates to
87
unaffiliated third parties, the Depositor shall report: (i) its
acquisition of
the Mortgage Loans from the respective Mortgage Loan Sellers,
pursuant to the
respective Mortgage Loan Purchase Agreements, as a purchase of the
Mortgage
Loans from the respective Mortgage Loan Sellers; and (ii) its
transfer of the
Mortgage Loans to the Trustee, pursuant to Section 2.01(a), as a
sale of the
Mortgage Loans to the Trustee. In connection with the foregoing,
the Depositor
shall cause all of its records to reflect such acquisition as a
purchase and
such transfer as a sale (in each case, as opposed to a secured
loan).
After the Depositor's transfer of the Mortgage Loans to the Trustee
pursuant to Section 2.01(a), the Depositor shall not take any
action
inconsistent with the Trust's ownership of the Mortgage Loans.
SECTION 2.02 Acceptance of the Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt of the Depositor's assignment to it of the
Depositor's
right, title and interest in the assets that constitute the Trust
Fund, and
further acknowledges receipt by it or a Custodian on its behalf,
subject to the
provisos in the definition of "Mortgage File", the provisions of
Section 2.01,
the further limitations on review provided for in Section 2.02(b),
the fact that
as of the Closing Date, the Trustee has only reviewed the Mortgage
File for the
presence of the Specially Designated Mortgage Loan Documents, and
the exceptions
noted on the schedule of exceptions attached hereto as Schedule II
of (i) the
Mortgage File delivered to it for each Mortgage Loan and (ii) a
copy of a fully
executed counterpart of the Swap Agreement and each of the Mortgage
Loan
Purchase Agreements all in good faith and without notice of any
adverse claim,
and declares that it or a Custodian on its behalf holds and will
hold such
documents and the other documents received by it that constitute
portions of the
Mortgage Files, and that it holds and will hold the Mortgage Loans
and other
assets included in the Trust Fund, in trust for the exclusive use
and benefit of
all present and future Certificateholders. The Trustee also
acknowledges receipt
of the portion of the applicable Mortgage File specifically
relating to the
Carolina Place B-Note Loan(s) and that it holds and will hold such
portion of
such Mortgage File in trust for the use and benefit of the Carolina
Place
B-Noteholder(s). The Trustee hereby certifies to each of the
Depositor, the
Master Servicer, the Special Servicer and each Mortgage Loan Seller
that with
respect to each Mortgage Loan except as identified in the schedule
of
exceptions, which is attached hereto as Schedule II without regard
to the
proviso in the definition of "Mortgage File," each of the Specially
Designated
Mortgage Loan Documents are in its possession. In addition, within
ninety (90)
days after the Closing Date (and if any exceptions are noted, again
every 90
days thereafter until the second anniversary of the Closing Date,
and every 180
days thereafter until the fifth anniversary of the Closing Date,
and thereafter
upon request by any party hereto, any Mortgage Loan Seller or the
Majority
Controlling Class Certificateholder, the Trustee or the Custodian
on its behalf
will review the Mortgage Files and the Trustee will deliver an
updated exception
report to each of the Depositor, the Master Servicer, the Special
Servicer and
each Mortgage Loan Seller (with a copy to the Majority Controlling
Class
Certificateholder). By virtue of its delivery of an updated
exception report,
the Trustee shall be deemed to certify that, with respect to each
Mortgage Loan
listed in the Mortgage Loan Schedule, except as specifically
identified in the
updated exception report, (i) without regard to the proviso in the
definition of
"Mortgage File," all documents specified in clauses (i), (ii),
88
(iv)(A), (v) and (vii), and to the extent provided in the related
Mortgage File
and actually known by a Responsible Officer of the Trustee to be
required,
clauses (iii), (iv)(B), (iv)(C), (vi), (viii), (ix)(A) and (x)
through (xiii) of
the definition of "Mortgage File" are in its possession, (ii) all
documents
delivered or caused to be delivered by the applicable Mortgage Loan
Seller
constituting the related Mortgage File have been reviewed by it and
appear
regular on their face and appear to relate to such Mortgage Loan,
and (iii)
based on such examination and only as to the foregoing documents,
the
information set forth in the Mortgage Loan Schedule for such
Mortgage Loan with
respect to the items specified in clauses (v) and (vi)(C) of the
definition of
"Mortgage Loan Schedule" is correct. Further, with respect to the
documents
described in clause (viii) of the definition of Mortgage File, the
Trustee may
assume, for purposes of the certification delivered in this Section
2.02(a) that
the related Mortgage File should include one state level UCC
Financing Statement
filing in the state of incorporation of the Mortgagor for each
Mortgaged
Property (or with respect to any Mortgage Loan that has two or more
Mortgagors,
for each Mortgagor); provided, however, that to the extent the
Trustee has
actual knowledge or is notified of any fixture or real property UCC
Financing
Statements filed in the county of the state where the related
Mortgaged Property
is located, the Trustee shall file an assignment to the Trust Fund
with respect
to such UCC Financing Statements in the appropriate jurisdiction
under the UCC
at the expense of the related Mortgage Loan Seller. The UCC
Financing Statements
to be assigned to the Trust Fund will be delivered by the related
Mortgage Loan
Seller to the Trustee on the new national forms, in recordable form
and
completed pursuant to Revised Article IX of the UCC. The Trustee
will submit
such UCC Financing Statements for filing in the state of
incorporation of the
related Mortgagor as so indicated on the documents provided.
(b) None of the Trustee, the Master Servicer, the Special Servicer
or
any Custodian is under any duty or obligation to inspect, review or
examine any
of the documents, instruments, certificates or other papers
relating to the
Mortgage Loans delivered to it to determine that the same are
valid, legal,
effective, genuine, enforceable, in recordable form, sufficient or
appropriate
for the represented purpose or that they are other than what they
purport to be
on their face.
(c) Pursuant to the related Mortgage Loan Purchase Agreement, if
any
material exceptions are noted on the schedule of exceptions
described in Section
2.02(a) with respect to the documents specified in clauses (i),
(ii), (vii),
(ix) (solely with respect to Ground Leases) and (xii) of the
definition of
"Mortgage File", the related Mortgage Loan Seller is required to
cure such cure
any exceptions (for the avoidance of doubt, any deficiencies with
respect to the
documents specified in clause (ii) of the definition of "Mortgage
File"
resulting solely from a delay in the return of the related
documents from the
applicable recording office, shall be cured in the time and manner
described in
Section 2.01(c)) within fifteen (15) Business Days (or, in the
Controlling Class
Representative's reasonable discretion, thirty (30) Business Days)
of the
Closing Date. If such exception is not so cured, the related
Mortgage Loan
Seller shall be required to (1) repurchase the related Mortgage
Loan in
accordance with Section 2.03(a), (2) with respect to exceptions
relating to
clause (xii) of the definition of "Mortgage File", deposit with the
Special
Servicer (who shall promptly notify the Master Servicer thereof) an
amount, to
be held in a Special Reserve Account, equal to the amount of the
undelivered
letter of credit (or, in the alternative, deliver to the Master
Servicer a
letter of credit for the benefit of the Master Servicer on behalf
of the Trustee
and upon the same terms and conditions as the undelivered
89
letter of credit), which the Special Servicer or the Master
Servicer, as the
case may be, on behalf of the Trust, may use or draw upon, as
applicable, under
the same circumstances and conditions as the Master Servicer would
have been
entitled to draw on the undelivered letter of credit, or (3) with
respect to any
exceptions relating to the documents specified in clauses (i), (ii)
and (vii) of
the definition of "Mortgage File", deposit with the Special
Servicer an amount,
to be held in trust in a Special Reserve Account, equal to 25% of
the Stated
Principal Balance of the related Mortgage Loan. Any letter of
credit or funds
deposited pursuant to clauses (2) and (3) above shall be held
pursuant to the
related Mortgage Loan Purchase Agreement by the appropriate
servicer until the
earlier of (x) the date on which the Master Servicer certifies to
the Trustee
and the Controlling Class Representative that such exception has
been cured, at
which time such funds or letter of credit, as applicable, shall be
returned to
the related Mortgage Loan Seller and (y) thirty (30) Business Days
or, if the
Controlling Class Representative extends the cure period,
forty-five (45)
Business Days after the Closing Date; provided, however, that if
such exception
is not cured within such 30-Business Day or 45-Business Day period,
as the case
may be, (A) in the case of clause (2), the Special Servicer shall
retain such
funds on deposit in the related Special Reserve Account, or (B) in
the case of
clause (3), the related Mortgage Loan Seller shall repurchase the
related
Mortgage Loan in accordance with the terms and conditions of
Section 2.03(a) or
the related Mortgage Loan Purchase Agreement, at which time such
funds shall be
applied to the Purchase Price of the related Mortgage Loan. Any
funds or letter
of credit deposited pursuant to clauses (2) or (3) shall be treated
as an
"outside reserve fund" for purposes of the REMIC Provisions, and
the related
Mortgage Loan Seller shall be treated as the beneficial owner
thereof (and any
amounts reimbursed by a REMIC Pool) and shall be taxed on any
reinvestment
income with respect to such funds.
If the related Mortgage Loan Seller has delivered to the Special
Servicer cash in respect of a material exception as contemplated
above, the
Special Servicer shall establish a Special Reserve Account, and the
Trustee or
its designee shall deposit any such amounts received from a
Mortgage Loan Seller
into the related Special Reserve Account within one Business Day of
receipt. The
related Mortgage Loan Seller may direct the Special Servicer to
invest or cause
the investment of the funds deposited in the Special Reserve
Account in
Permitted Investments that bear interest or are sold at a discount
and that
mature, unless payable on demand, no later than the Business Day
prior to the
next P&I Advance Date. The Special Servicer shall act upon the
written
instructions of the related Mortgage Loan Seller with respect to
the investment
of the funds in the Special Reserve Account in such Permitted
Investments,
provided, that in the absence of appropriate and timely written
instructions
from the related Mortgage Loan Seller, the Special Servicer shall
not have any
obligation to invest or direct the investment funds in such Special
Reserve
Account. All income and gain realized from the investment of funds
deposited in
such Special Reserve Account shall be for the benefit of the
related Mortgage
Loan Seller and shall be withdrawn by the Special Servicer or its
designees and
remitted to the related Mortgage Loan Seller on each P&I
Advance Date (net of
any losses incurred), and the related Mortgage Loan Seller shall be
obligated to
remit to the Trustee from its own funds for deposit into such
Special Reserve
Account the amount of any Net Investment Loss (net of Net
Investment Earnings)
in respect of such Permitted Investments immediately upon
realization of such
Net Investment Losses and receipt of written notice thereof from
the Trustee,
provided, that, pursuant to the related Mortgage Loan Purchase
Agreement, the
related Mortgage Loan Seller is not be obligated to deposit any
loss on an
investment of funds in the Special
90
Reserve Account if such loss is incurred solely as a result of the
insolvency
of the federal or state chartered depository institution or trust
company that
holds such Special Reserve Account, provided, that such depository
institution
is not the same entity as such Mortgage Loan Seller or an affiliate
thereof. The
Special Reserve Account shall be considered an "outside reserve
fund" within the
meaning of the REMIC Provisions, and such Special Reserve Account
(or any
reimbursement from a REMIC Pool with respect thereto) shall be
beneficially
owned by the related Mortgage Loan Seller, who shall be taxable on
all income,
if any, with respect thereto.
The Special Servicer shall draw upon any cash in the Special
Reserve
Account and the Master Servicer shall draw upon any letter of
credit delivered
as contemplated above to cover any expenses or losses related to or
arising out
of the Document Defect for which such cash or letter of credit was
delivered,
the amount so drawn to be deposited in the Certificate Account.
SECTION 2.03 Mortgage Loan Seller's Repurchase or Substitution of
Mortgage Loans for Document Defects and Breaches of Representations
and
Warranties.
(a) If any party hereto discovers or receives notice that any
document
or documents constituting a part of a Mortgage File has not been
properly
executed, is missing (beyond the time period required for its
delivery
hereunder), contains information that does not conform in any
material respect
with the corresponding information set forth in the Mortgage Loan
Schedule, or
does not appear to be regular on its face (each, a "Document
Defect"), or
discovers or receives notice of a breach of any representation or
warranty
relating to any Mortgage Loan set forth in the applicable Mortgage
Loan Purchase
Agreement (a "Breach"), the party discovering such Document Defect
or Breach
shall give written notice (which notice, in respect of any
obligation of the
Trustee to provide notice of a Document Defect, shall be deemed
given by the
delivery of the certificate as required by Section 2.02(a)) to the
other parties
hereto, to the Majority Controlling Class Certificateholder and to
the Rating
Agencies and, in the case of the Carolina Place Mortgage Loan, the
Majority
Class CP Representative of such Document Defect or Breach. Promptly
upon
becoming aware of any Document Defect or Breach (including through
such written
notice provided by any party hereto or the Majority Controlling
Class
Certificateholder as provided above), if any party hereto
determines that such
Document Defect or Breach materially and adversely affects the
value of the
affected Mortgage Loan, the interests of the Trust therein or the
interests of
any Certificateholder, then such party shall notify the Master
Servicer of such
determination, and promptly after receipt of such notice, the
Master Servicer
shall, to the extent that it is entitled to do so under the related
Mortgage
Loan Purchase Agreement, request in writing (with a copy to the
other parties
hereto, the Majority Controlling Class Certificateholder, the
Rating Agencies
and the Controlling Class Representative (and, in the case of the
Carolina Place
Mortgage Loan, the Class CP Representative)) that the applicable
Mortgage Loan
Seller, not later than ninety (90) days (or, if applicable, such
shorter period
contemplated by Section 2.02(c)) from receipt of such written
request (or, in
the case of a Document Defect or Breach relating to a Mortgage Loan
not being a
"qualified mortgage" within the meaning of the REMIC Provisions,
not later than
ninety (90) days (or, if applicable, such shorter period
contemplated by Section
2.02(c)) after any party to this Agreement discovers such Document
Defect or
Breach) (i) cure such Document Defect or Breach, as the case may
be, in
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accordance with Section 3(c) of the applicable Mortgage Loan
Purchase Agreement,
(ii) repurchase the affected Mortgage Loan in accordance with
Section 3(c) of
the related Mortgage Loan Purchase Agreement, or (iii) within two
years of the
Closing Date, substitute a Qualified Substitute Mortgage Loan
(other than with
respect to the Carolina Place Mortgage Loan, for which no
substitution will be
permitted) for such affected Mortgage Loan and pay the Master
Servicer for
deposit into the Certificate Account any Substitution Shortfall
Amount in
connection therewith in accordance with Sections 3(c) and 3(d) of
the applicable
Mortgage Loan Purchase Agreement; provided, however, that if such
Document
Defect or Breach is capable of being cured but not within such
ninety (90) day
period, such Document Defect or Breach does not relate to the
Mortgage Loan not
being treated as a "qualified mortgage" within the meaning of the
REMIC
Provisions and is not a Document Defect specifically addressed in
Section
2.02(c), and the applicable Mortgage Loan Seller has commenced and
is diligently
proceeding with the cure of such Document Defect or Breach within
such ninety
(90) day period, the applicable Mortgage Loan Seller shall have an
additional
ninety (90) days to complete such cure (or, failing such cure, to
repurchase or
substitute for the related Mortgage Loan); and provided, further,
with respect
to such additional ninety (90) day period the applicable Mortgage
Loan Seller
shall have delivered an Officer's Certificate to the Trustee
setting forth what
actions the applicable Mortgage Loan Seller is pursuing in
connection with the
cure thereof and stating that the applicable Mortgage Loan Seller
anticipates
such Document Defect or Breach will be cured within the additional
ninety (90)
day period; and provided, further, that no Document Defect (other
than with
respect to a Mortgage Note, Mortgage, title insurance policy,
Ground Lease or
any letter of credit) shall be considered to materially and
adversely affect the
value of the related Mortgage Loan, the interests of the Trust
therein or the
interests of any Certificateholder, unless the document with
respect to which
the Document Defect exists is required in connection with an
imminent
enforcement of the mortgagee's rights or remedies under the related
Mortgage
Loan, defending any claim asserted by any Mortgagor or third party
with respect
to the related Mortgage Loan, establishing the validity or priority
of any lien
on any collateral securing the related Mortgage Loan or for any
immediate
significant servicing obligations. For a period of two years from
the Closing
Date, so long as there remains any Mortgage File as to which there
is any
uncured Document Defect and so long as the applicable Mortgage Loan
Seller shall
provide the Officer's Certificate pursuant to Section 3(c) of the
applicable
Mortgage Loan Purchase Agreement, the Trustee shall on a quarterly
basis prepare
and deliver to the other parties a written report as to the status
of such
uncured Document Defects as provided in this Section 2.03(a). If
the affected
Mortgage Loan is to be repurchased or substituted, the Master
Servicer shall
designate the Certificate Account as the account to which funds in
the amount of
the Purchase Price or the Substitution Shortfall Amount, as
applicable, are to
be wired. Any such repurchase or substitution of a Mortgage Loan
shall be on a
whole loan, servicing released basis.
If (i) any Mortgage Loan is required to be repurchased or
substituted
for in the manner described in the immediately preceding paragraph,
(ii) such
Mortgage Loan is a Crossed Loan, and (iii) the applicable Document
Defect or
Breach does not constitute a Document Defect or Breach, as the case
may be, as
to any other Crossed Loan in such Crossed Group (without regard to
this
paragraph), then the applicable Document Defect or Breach, as the
case may be,
will be deemed to constitute a Document Defect or Breach, as the
case may be, as
to the other Crossed Loan(s) in the Crossed Group for purposes of
this
paragraph, and the related Mortgage Loan Seller will be required to
repurchase
or substitute for such other Crossed Loan(s) in the
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related Crossed Group as provided in the immediately preceding
paragraph unless
such other Crossed Loan(s) satisfy the Crossed Loan Repurchase
Criteria and
satisfy all other criteria for substitution or repurchase, as
applicable, of
Mortgage Loans set forth herein. In the event that the remaining
Crossed Loans
in such Crossed Group satisfy the aforementioned criteria, the
Mortgage Loan
Seller may elect either to repurchase or substitute for only the
affected
Crossed Loan as to which the related Document Defect or Breach
exists or to
repurchase or substitute for all of the Crossed Loans in the
related Crossed
Group. Any reserve or other cash collateral or letters of credit
securing the
Crossed Loans shall be allocated between such Mortgage Loans in
accordance with
the Mortgage Loan documents or otherwise on a pro rata basis.
Except as
otherwise provided in the last paragraph of Section 3(d) of each
Mortgage Loan
Purchase Agreement, all other terms of the Mortgage Loans shall
remain in full
force and effect without any modification thereof.
With respect to any Crossed Loan, to the extent that the applicable
Mortgage Loan Seller is required to repurchase or substitute for
such Mortgage
Loan in the manner prescribed in this Section 2.03(a) while the
Trustee
continues to hold any other Crossed Loans in the related Crossed
Group, the
applicable Mortgage Loan Seller and the Depositor will, as set
forth in the
related Mortgage Loan Purchase Agreement, forbear from enforcing
any remedies
against the other's Primary Collateral but each will be permitted
to exercise
remedies against the Primary Collateral securing its respective
Mortgage Loans,
including with respect to the Trustee, the Primary Collateral
securing Mortgage
Loans still held by the Trustee, so long as such exercise does not
materially
impair the ability of the other party to exercise its remedies
against its
Primary Collateral.
(b) In connection with any repurchase or substitution of one or
more
Mortgage Loans contemplated by this Section 2.03, upon receipt of a
Request for
Release (in the form of Exhibit D-1 attached hereto) of a Servicing
Officer of
the Master Servicer certifying as to the receipt of the applicable
Purchase
Price(s) in the Certificate Account (in the case of any such
repurchase) or the
receipt of the applicable Substitution Shortfall Amount(s) in the
Certificate
Account and upon the delivery of the Mortgage File(s) and the
Servicing File(s)
for the related Qualified Substitute Mortgage Loan(s) to the
Custodian and the
Master Servicer, respectively (in the case of any such
substitution), (i) the
Trustee shall execute and deliver such endorsements and assignments
as are
provided to it, in each case without recourse, representation or
warranty, as
shall be necessary to vest in the applicable Mortgage Loan Seller
the legal and
beneficial ownership of each repurchased Mortgage Loan or deleted
Mortgage Loan,
as applicable, being released pursuant to this Section 2.03, (ii)
the Trustee,
the Custodian, the Master Servicer, and the Special Servicer shall
each tender
to the applicable Mortgage Loan Seller, upon delivery to each of
them of a
receipt executed by the applicable Mortgage Loan Seller, all
portions of the
Mortgage File and other documents pertaining to each such Mortgage
Loan
possessed by it, and (iii) the Master Servicer and the Special
Servicer shall
release to the applicable Mortgage Loan Seller any Escrow Payments
and Reserve
Funds held by it in respect of such repurchased or deleted Mortgage
Loan;
provided that such tender by the Trustee or the Custodian shall be
conditioned
upon its receipt from the Master Servicer or the Special Servicer
of a Request
for Release. Thereafter, the Trustee, the Custodian, the Master
Servicer and the
Special Servicer shall have no further responsibility with regard
to the related
repurchased Mortgage Loan(s) or deleted Mortgage Loan(s), as
applicable, and the
related Mortgage File(s)
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and Servicing File(s). The Master Servicer shall, and is hereby
authorized and
empowered by the Trustee to, prepare, execute and deliver in its
own name, on
behalf of the Certificateholders and the Trustee or any of them,
the
endorsements and assignments contemplated by this Section 2.03, and
the Trustee
shall execute any powers of attorney that are prepared and
delivered to the
Trustee by the Master Servicer and are necessary to permit the
Master Servicer
to do so. The Master Servicer shall indemnify the Trustee for any
reasonable
costs, fees, liabilities and expenses incurred by the Trustee in
connection with
the negligent or willful misuse by the Master Servicer of such
powers of
attorney. At the time a substitution is made, the related Mortgage
Loan Purchase
Agreement will provide that the Mortgage Loan Seller shall deliver
the related
Mortgage File to the Trustee and certify that the substitute
Mortgage Loan is a
Qualified Substitute Mortgage Loan.
(c) No substitution of a Qualified Substitute Mortgage Loan or
Loans
may be made in any calendar month after the Determination Date for
such month.
Periodic Payments due with respect to any Qualified Substitute
Mortgage Loan
after the related date of substitution shall be part of the Trust
Fund. Periodic
Payments due with respect to any Qualified Substitute Mortgage Loan
on or prior
to the related date of substitution shall not be part of the Trust
Fund and will
(to the extent received by the Master Servicer) be remitted by the
Master
Servicer to the applicable Mortgage Loan Seller promptly following
receipt.
(d) Each Mortgage Loan Purchase Agreement provides the sole
remedies
available to the Certificateholders, or the Trustee on behalf of
the
Certificateholders, respecting any Document Defect or Breach with
respect to the
Mortgage Loans purchased by the Depositor thereunder.
(e) The Trustee with the cooperation of the Special Servicer (in
the
case of Specially Serviced Mortgage Loans) shall, for the benefit
of the
Certificateholders, enforce the obligations of the Mortgage Loan
Sellers under
Section 3 of the applicable Mortgage Loan Purchase Agreement.
SECTION 2.04 Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the Trustee,
for
its own benefit and the benefit of the Certificateholders, and to
the Master
Servicer, the Special Servicer and the Fiscal Agent, 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;
(ii) the execution and delivery of this Agreement by the
Depositor, and the performance and compliance with the terms of
this
Agreement by the Depositor, will not violate the Depositor's
certificate of incorporation or bylaws or constitute a default (or
an
event which, with notice or lapse of time, or both, would
constitute a
default) under, or result in the breach of, any material agreement
or
other instrument to which it is a party or which is applicable to
it
or any of its assets;
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(iii) the Depositor has the full power and authority to enter
into and consummate all transactions contemplated by this
Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement;
(iv) this Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid,
legal and binding obligation of the Depositor, enforceable against
the
Depositor in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights
generally,
and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) the Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with
the
terms of this Agreement will not constitute a violation of, any
law,
any order or decree of any court or arbiter, or any order,
regulation
or demand of any federal, state or local governmental or regulatory
authority, which violation, in the Depositor's good faith and
reasonable judgment, is likely to affect materially and adversely
either the ability of the Depositor to perform its obligations
under
this Agreement or the financial condition of the Depositor;
(vi) the transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any
such approvals as have been obtained, and is not subject to any
bulk
transfer or similar law in effect in any applicable jurisdiction;
(vii) no litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined
adversely to the Depositor, would prohibit the Depositor from
entering
into this Agreement or that, 
