Contract
Exhibit
4(a)
XXXXX
FARGO COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor
and
[__________]
Master
Servicer
and
[__________]
Special
Servicer
and
[__________]
Trustee
Dated as
of [__________]
______________________________
$[__________]
Commercial
Mortgage Pass-Through Certificates
Series
[__________]
TABLE OF
CONTENTS
|
Page
|
||
|
ARTICLE I DEFINITIONS
|
||
|
Section
1.01
|
Defined
Terms
|
5
|
|
ARTICLE II CONVEYANCE
OF MORTGAGE LOANS; REPRESENTATIONS
AND
WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
|
||
|
Section
2.01
|
Conveyance
of Mortgage Loans
|
77
|
|
Section
2.02
|
Acceptance
of the Trust Fund by Trustee
|
80
|
|
Section
2.03
|
Mortgage
Loan Seller’s Repurchase or Substitution of Mortgage Loans for Document
Defects and Breaches of Representations and
Warranties
|
83
|
|
Section
2.04
|
Representations
and Warranties of Depositor
|
87
|
|
Section
2.05
|
Conveyance
of Mortgage Loans; Acceptance of REMIC I and Additional Interest Grantor
Trust by Trustee
|
89
|
|
Section
2.06
|
Issuance
of the REMIC I Regular Interests; Execution, Authentication and Delivery
of Class R-I Certificates
|
89
|
|
Section
2.07
|
Conveyance
of REMIC I Regular Interests; Acceptance of REMIC II by
Trustee
|
89
|
|
Section
2.08
|
Execution,
Authentication and Delivery of REMIC II
Certificates
|
90
|
|
Section
2.09
|
[Reserved]
|
90
|
|
Section
2.10
|
Execution,
Authentication and Delivery of Class Z Certificates
|
90
|
|
ARTICLE III ADMINISTRATION
AND SERVICING OF THE TRUST FUND
|
||
|
Section
3.01
|
Administration
of the Mortgage Loans
|
90
|
|
Section
3.02
|
Collection
of Mortgage Loan Payments
|
93
|
|
Section
3.03
|
Collection
of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve
Accounts
|
95
|
|
Section
3.04
|
Certificate
Account, Interest Reserve Account, Gain-on-Sale Reserve Account,
Additional Interest Account, Distribution Account and Companion
Distribution Account
|
99
|
-i-
|
Section
3.05
|
Permitted
Withdrawals from the Certificate Account, Distribution Account, Interest
Reserve Account, Additional Interest Account, Gain-on-Sale Reserve Account
and Companion Distribution Account
|
104
|
|
Section
3.06
|
Investment
of Funds in the Servicing Accounts, Reserve Accounts, Certificate Account,
Interest Reserve Account, Distribution Account, Companion Distribution
Account, Additional Interest Account, Gain-on-Sale Reserve Account and REO
Account
|
112
|
|
Section
3.07
|
Maintenance
of Insurance Policies; Errors and Omissions and Fidelity
Coverage
|
114
|
|
Section
3.08
|
Enforcement
of Alienation Clauses
|
117
|
|
Section
3.09
|
Realization
Upon Defaulted Mortgage Loans; Required Appraisals
|
120
|
|
Section
3.10
|
Trustee
and Custodian to Cooperate; Release of Mortgage
Files
|
124
|
|
Section
3.11
|
Servicing
Compensation
|
125
|
|
Section
3.12
|
Property
Inspections; Collection of Financial Statements; Delivery of Certain
Reports
|
129
|
|
Section
3.13
|
Annual
Reports on Assessment of Compliance with Servicing Criteria and Annual
Reports on Assessment of Compliance with Servicing
Criteria
|
133
|
|
Section
3.14
|
Attestation
by Independent Public Accountants
|
135
|
|
Section
3.15
|
Access
to Certain Information
|
136
|
|
Section
3.16
|
Title
to REO Property; REO Account
|
140
|
|
Section
3.17
|
Management
of REO Property
|
141
|
|
Section
3.18
|
Resolution
of Defaulted Mortgage Loans and REO Properties
|
145
|
|
Section
3.19
|
Additional
Obligations of Master Servicer and Special Servicer
|
149
|
|
Section
3.20
|
Modifications,
Waivers, Amendments and Consents
|
150
|
|
Section
3.21
|
Transfer
of Servicing Between Master Servicer and Special Servicer; Record
Keeping
|
157
|
|
Section
3.22
|
Sub-Servicing
Agreements
|
160
|
|
Section
3.23
|
Representations
and Warranties of Master Servicer and Special
Servicer
|
164
|
|
Section
3.24
|
Sub-Servicing
Agreement Representation and Warranty
|
166
|
|
Section
3.25
|
Designation
of Controlling Class Representative
|
167
|
|
Section
3.26
|
Companion
Paying Agent
|
169
|
|
Section
3.27
|
Companion
Register
|
169
|
|
Section
3.28
|
[Reserved]
|
170
|
|
Section
3.29
|
Future
Debt Secured by Interests in Related Borrowers
|
170
|
|
Section
3.30
|
Certain
Matters Relating to the Future Securitization of the [__________]
Companion Loan
|
170
|
|
ARTICLE IV DISTRIBUTIONS
TO CERTIFICATEHOLDERS
|
||
|
Section
4.01
|
Distributions
|
173
|
|
Section
4.02
|
Statements
to Certificateholders; CMSA Loan Periodic Update
File
|
190
|
|
Section
4.03
|
P&I
Advances
|
195
|
-ii-
|
Section
4.04
|
Allocation
of Realized Losses and Additional Trust Fund Expenses; Allocation of
Certificate Deferred Interest; Allocation of Appraisal Reduction
Amounts
|
198
|
|
Section
4.05
|
Calculations
|
201
|
|
Section
4.06
|
Use
of Agents
|
202
|
|
ARTICLE V THE
CERTIFICATES
|
||
|
Section
5.01
|
The
Certificates
|
202
|
|
Section
5.02
|
Registration
of Transfer and Exchange of Certificates
|
203
|
|
Section
5.03
|
Book-Entry
Certificates
|
208
|
|
Section
5.04
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
209
|
|
Section
5.05
|
Persons
Deemed Owners
|
210
|
|
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
|
210
|
|
Section
6.02
|
Merger,
Consolidation or Conversion of Depositor or Master Servicer or Special
Servicer
|
210
|
|
Section
6.03
|
Limitation
on Liability of Depositor, Master Servicer and Special
Servicer
|
211
|
|
Section
6.04
|
Resignation
of Master Servicer and the Special Servicer
|
212
|
|
Section
6.05
|
Rights
of Depositor and Trustee in Respect of Master Servicer and the Special
Servicer
|
212
|
|
Section
6.06
|
Depositor,
Master Servicer and Special Servicer to Cooperate with
Trustee
|
213
|
|
Section
6.07
|
Depositor,
Special Servicer and Trustee to Cooperate with Master
Servicer
|
213
|
|
Section
6.08
|
Depositor,
Master Servicer and Trustee to Cooperate with Special
Servicer
|
213
|
|
Section
6.09
|
Designation
of Special Servicer by the Controlling Class and Controlling
Holders
|
213
|
|
Section
6.10
|
Master
Servicer or Special Servicer as Owner of a
Certificate
|
214
|
|
Section
6.11
|
The
Controlling Class Representative
|
215
|
-iii-
|
ARTICLE VII DEFAULT
|
||
|
Section
7.01
|
Events
of Default
|
218
|
|
Section
7.02
|
Trustee
to Act; Appointment of Successor
|
223
|
|
Section
7.03
|
Notification
to Certificateholders and Companion Holders
|
224
|
|
Section
7.04
|
Waiver
of Events of Default
|
225
|
|
Section
7.05
|
Additional
Remedies of Trustee Upon Event of Default
|
225
|
|
ARTICLE VIII CONCERNING
THE TRUSTEE
|
||
|
Section
8.01
|
Duties
of Trustee
|
225
|
|
Section
8.02
|
Certain
Matters Affecting Trustee
|
227
|
|
Section
8.03
|
Trustee
Not Liable for Validity or Sufficiency of Certificates or Mortgage
Loans
|
229
|
|
Section
8.04
|
Trustee
May Own Certificates
|
229
|
|
Section
8.05
|
Fees
and Expenses of Trustee; Indemnification of Trustee
|
229
|
|
Section
8.06
|
Eligibility
Requirements for Trustee
|
230
|
|
Section
8.07
|
Resignation
and Removal of Trustee
|
231
|
|
Section
8.08
|
Successor
Trustee
|
232
|
|
Section
8.09
|
Merger
or Consolidation of Trustee
|
232
|
|
Section
8.10
|
Appointment
of Co-Trustee or Separate Trustee
|
232
|
|
Section
8.11
|
Appointment
of Custodians
|
234
|
|
Section
8.12
|
Appointment
of Authenticating Agents
|
234
|
|
Section
8.13
|
Access
to Certain Information
|
236
|
|
Section
8.14
|
Appointment
of REMIC Administrators
|
236
|
|
Section
8.15
|
Representations
and Warranties of Trustee
|
237
|
|
Section
8.16
|
Appointment
of the Paying Agent
|
238
|
|
Section
8.17
|
Reports
to the Securities and Exchange Commission; Available
Information
|
239
|
|
Section
8.18
|
Maintenance
of Mortgage File
|
249
|
|
ARTICLE IX TERMINATION
|
||
|
Section
9.01
|
Termination
Upon Repurchase or Liquidation of All Mortgage
Loans
|
249
|
|
Section
9.02
|
Additional
Termination Requirements
|
253
|
-iv-
|
ARTICLE X ADDITIONAL
TAX PROVISIONS
|
||
|
Section
10.01
|
REMIC
Administration
|
254
|
|
Section
10.02
|
Administration
of the Additional Interest Grantor Trust
|
258
|
|
ARTICLE XI MISCELLANEOUS
PROVISIONS
|
||
|
Section
11.01
|
Amendment
|
260
|
|
Section
11.02
|
Recordation
of Agreement; Counterparts
|
262
|
|
Section
11.03
|
Limitation
on Rights of Certificateholders
|
262
|
|
Section
11.04
|
Governing
Law
|
263
|
|
Section
11.05
|
Notices
|
263
|
|
Section
11.06
|
Severability
of Provisions
|
264
|
|
Section
11.07
|
Grant
of a Security Interest
|
264
|
|
Section
11.08
|
Xxxxxx
Act
|
264
|
|
Section
11.09
|
Successors
and Assigns; Beneficiaries
|
264
|
|
Section
11.10
|
Article
and Section Headings
|
264
|
|
Section
11.11
|
Notices
to Rating Agencies
|
265
|
|
Section
11.12
|
Complete
Agreement
|
266
|
-v-
EXHIBITS
|
Exhibit
Description
|
Exhibit
No.
|
Section Reference
|
|
Form
of Class A-1 Certificate
|
A-1
|
Section 1.01
Definition of “Class A-1 Certificate”
|
|
Form
of Class A-2 Certificate
|
A-2
|
Section 1.01
Definition of “Class A-2 Certificate”
|
|
Form
of Class A-3 Certificate
|
A-3
|
Section
1.01 Definition of “Class A-3 Certificate”
|
|
Form
of Class A-PB Certificate
|
A-4
|
Section 1.01
Definition of “Class A-PB Certificate”
|
|
Form
of Class A-4 Certificate
|
A-5
|
Section 1.01
Definition of “Class A-4 Certificate”
|
|
Form
of Class A-5 Certificate
|
A-6
|
Section 1.01
Definition of “Class A-5 Certificate”
|
|
Form
of Class A-1A Certificate
|
A-7
|
Section
1.01 Definition of “Class A-1A Certificate”
|
|
Form
of Class X-C Certificate
|
A-8
|
Section 1.01
Definition of “Class X-C Certificate”
|
|
Form
of Class X-P Certificate
|
A-9
|
Section 1.01
Definition of “Class X-P Certificate”
|
|
Form
of Class A-M Certificate
|
A-10
|
Section 1.01
Definition of “Class A-M Certificate”
|
|
Form
of Class A-J Certificate
|
A-11
|
Section 1.01
Definition of “Class A-J Certificate”
|
|
Form
of Class B Certificate
|
A-12
|
Section 1.01
Definition of “Class B Certificate”
|
|
Form
of Class C Certificate
|
A-13
|
Section 1.01
Definition of “Class C Certificate”
|
|
Form
of Class D Certificate
|
A-14
|
Section 1.01
Definition of “Class D Certificate”
|
|
Form
of Class E Certificate
|
A-15
|
Section 1.01
Definition of “Class E Certificate”
|
|
Form
of Class F Certificate
|
A-16
|
Section 1.01
Definition of “Class F Certificate”
|
|
Form
of Class G Certificate
|
A-17
|
Section 1.01
Definition of “Class G Certificate”
|
-vi-
|
Exhibit
Description
|
Exhibit
No.
|
Section Reference
|
|
Form
of Class H Certificate
|
A-18
|
Section 1.01
Definition of “Class H Certificate”
|
|
Form
of Class J Certificate
|
A-19
|
Section 1.01
Definition of “Class J Certificate”
|
|
Form
of Class K Certificate
|
A-20
|
Section 1.01
Definition of “Class K Certificate”
|
|
Form
of Class L Certificate
|
A-21
|
Section 1.01
Definition of “Class L Certificate”
|
|
Form
of Class M Certificate
|
A-22
|
Section
1.01 Definition of “Class M Certificate”
|
|
Form
of Class N Certificate
|
A-23
|
Section 1.01
Definition of “Class N Certificate”
|
|
Form
of Class O Certificate
|
A-24
|
Section 1.01
Definition of “Class O Certificate”
|
|
Form
of Class P Certificate
|
A-25
|
Section 1.01
Definition of “Class P Certificate”
|
|
Form
of Class Q Certificate
|
A-26
|
Section
1.01 Definition of “Class Q Certificate”
|
|
Form
of Class S Certificate
|
A-27
|
Section
1.01 Definition of “Class S Certificate”
|
|
Form
of Class R-I Certificate
|
A-28
|
Section 1.01
Definition of “Class R-I Certificate”
|
|
Form
of Class R-II Certificate
|
A-29
|
Section 1.01
Definition of “Class R-II Certificate”
|
|
Form
of Class Z Certificate
|
A-30
|
Section 1.01
Definition of “Class Z Certificate”
|
|
Mortgage
Loan Schedule
|
B
|
Section 1.01
Definition of “Mortgage Loan Schedule”
|
|
Schedule
of Exceptions to Mortgage File Delivery
|
C-1
|
Section 2.02(a)
|
|
Form
of Custodial Certification
|
C-2
|
Section 2.02(b)
|
|
Form
of Master Servicer Request for Release
|
D-1
|
Section 1.01
Definition of “Request for Release”; Section 2.03(b);
Section 3.10(a); and Section 3.10(b)
|
|
Form
of Special Servicer Request for Release
|
D-2
|
Section 1.01
Definition of “Request for Release”;
Section 3.10(b)
|
-vii-
|
Exhibit
Description
|
Exhibit
No.
|
Section Reference
|
|
Calculation
of NOI/Debt Service Coverage Ratios
|
E
|
Section 1.01
Definition of “Net Operating Income”
|
|
Form
of Transferor Certificate
|
F-1
|
Section 5.02(b)
|
|
Form
of Transferee Certificate for QIBs
|
F-2
|
Section 5.02(b)
|
|
Form
of Transferee Certificate for Non-QIBs
|
F-3
|
Section 5.02(b)
|
|
Form
of Transferee Certificate
|
G
|
Section 5.02(c)
|
|
Form
of Transfer Affidavit and Agreement Pursuant to
Section 5.02(d)(i)(B)
|
H-1
|
Section 5.02(d)(i)(B)
|
|
Form
of Transferor Certificate Pursuant to
Section 5.02(d)(i)(D)
|
H-2
|
Section 5.02(d)(i)(D)
|
|
Form
of Notice and Acknowledgment
|
I-1
|
Section 6.09
|
|
Form
of Acknowledgment of Proposed Special Servicer
|
I-2
|
Section 6.09
|
|
[RESERVED]
|
J
|
|
|
Form
of Certificateholder Confirmation Certificate Request by Beneficial
Holder
|
K-1
|
Section 1.01
Definition of “Privileged Person”; Section 3.15(a)
|
|
Form
of Prospective Purchaser Certificate
|
K-2
|
Section
1.01 Definition of “Privileged Person”;
Section 3.15(a)
|
|
Initial
Companion Holders
|
L
|
Section 3.27
|
|
Form
of Purchase Option Notice
|
M
|
Section 3.18(e)
|
|
Form
of Defeasance Certificate
|
N
|
Section 3.20(h)
|
|
Form
of Depositor Certification
|
O
|
Section 8.17(d)
|
|
Form
of Trustee Certification
|
P
|
Section 8.17(e)
|
|
Form
of Master Servicer Certification
|
Q-1
|
Section 8.17(e)
|
|
Form
of Special Servicer Certification
|
Q-2
|
Section 8.17(e)
|
|
Class
A-PB Planned Principal Balance Table
|
R
|
Section
1.01 Definition of “Class A-PB
Planned Principal Amount”
|
-viii-
|
Exhibit
Description
|
Exhibit
No.
|
Section Reference
|
|
Relevant
Servicing Criteria
|
S
|
Section
1.01 Definition of “Relevant Servicing Criteria”
|
|
Class
X-P Reference Rate Schedule
|
T
|
Section
1.01 Definition of “Class X-P Reference Rate”
|
|
Additional
Form 10-D Disclosure
|
U
|
Section
8.17(i)
|
|
Additional
Disclosure Notification
|
V
|
Section
1.01 Definition of “Additional Disclosure Notification”; Section
8.17(i)
|
|
Additional
Form 10-K Disclosure
|
W
|
Section
8.17(k)
|
|
Form
8-K Disclosure Information
|
X
|
Section
8.17(j)
|
|
Sub-Servicer
List
|
Y
|
Section
8.17(f)
|
-ix-
This
Pooling and Servicing Agreement (the “Agreement”) is dated
and effective as of [__________], among XXXXX FARGO COMMERCIAL MORTGAGE
SECURITIES, INC., as Depositor, [__________], as Master Servicer, [__________],
as Special Servicer and [__________], as Trustee.
PRELIMINARY
STATEMENT:
The
Depositor intends to sell mortgage pass-through certificates (collectively, the
“Certificates”), to be
issued hereunder in multiple classes (each, a “Class”), which in the
aggregate will evidence the entire beneficial ownership interest in a trust fund
(the “Trust
Fund”) to be created hereunder, the primary assets of which will be the
Mortgage Loans.
REMIC I
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of all of the Mortgage Loans (exclusive of that portion of the
interest payments thereon that constitutes Additional Interest) and certain
other related assets subject to this Agreement as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
REMIC I. The
Class R-I Certificates will represent the sole class of “residual
interests” in REMIC I for purposes of the REMIC Provisions under federal
income tax law.
REMIC II
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of all of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as REMIC II. The
Class R-II Certificates will evidence the sole class of “residual interests”
in REMIC II for purposes of the REMIC Provisions under federal income tax
law. For federal income tax purposes, each Class of the Regular
Certificates will be designated as a separate “regular interest” in
REMIC II for purposes of the REMIC Provisions under federal income tax
law.
The
following table sets forth the Class or Component designation, the original
REMIC I Principal Balance for each corresponding REMIC I Regular
Interest (the “Corresponding REMIC I
Regular Interest”), the Corresponding Components of the Class X
Certificates (the “Corresponding
Components”) and the Original Class Principal Balance for each Class of
Sequential Pay Certificates (the “Corresponding
Certificates”).
|
Corresponding
Certificates
|
Original
Class Principal Balance
|
Corresponding
REMIC I Regular Interests (1)
|
Original
REMIC I Principal Balance
|
REMIC I
Pass-Through Rate
|
Corresponding
Components of Class X Certificates (1)
|
|||||||||
|
Class A-1
|
$[_________]
|
LA-1-1
|
$[_________]
|
(2) | X-A-1-1 | |||||||||
|
LA-1-2
|
$[_________]
|
X-A-1-2 | ||||||||||||
|
LA-1-3
|
$[_________]
|
X-A-1-3 | ||||||||||||
|
LA-1-4
|
$[_________]
|
X-A-1-4 | ||||||||||||
|
Class A-2
|
$[_________]
|
LA-2-1
|
$[_________]
|
(2) | X-A-2-1 | |||||||||
|
LA-2-2
|
$[_________]
|
X-A-2-2 | ||||||||||||
|
LA-2-3
|
$[_________]
|
X-A-2-3 | ||||||||||||
|
Class
A-3
|
$[_________]
|
LA-3
|
$[_________]
|
(2) | X-A-3 | |||||||||
|
Class A-PB
|
$[_________]
|
LA-PB-1
|
$[_________]
|
(2) |
X-A-PB-1
|
|||||||||
|
LA-PB-2
|
$[_________]
|
X-A-PB-2
|
||||||||||||
|
LA-PB-3
|
$[_________]
|
X-A-PB-3
|
||||||||||||
|
LA-PB-4
|
$[_________]
|
X-A-PB-4
|
||||||||||||
|
Class A-4
|
$[_________]
|
LA-4-1
|
$[_________]
|
(2) | X-A-4-1 | |||||||||
|
LA-4-2
|
$[_________]
|
X-A-4-2 | ||||||||||||
|
LA-4-3
|
$[_________]
|
X-A-4-3 | ||||||||||||
|
LA-4-4
|
$[_________]
|
X-A-4-4 | ||||||||||||
|
LA-4-5
|
$[_________]
|
X-A-4-5 | ||||||||||||
|
LA-4-6
|
$[_________]
|
X-A-4-6 | ||||||||||||
|
LA-4-7
|
$[_________]
|
X-A-4-7 | ||||||||||||
|
Class
A-5
|
$[_________]
|
LA-5-1
|
$[_________]
|
(2) | X-A-5-1 | |||||||||
|
LA-5-2
|
$[_________]
|
X-A-5-2 | ||||||||||||
|
LA-5-3
|
$[_________]
|
X-A-5-3 | ||||||||||||
|
Class
A-1A
|
$[_________]
|
LA-1A-1
|
$[_________]
|
(2) | X-A-1A-1 | |||||||||
|
LA-1A-2
|
$[_________]
|
X-A-1A-2 | ||||||||||||
|
LA-1A-3
|
$[_________]
|
X-A-1A-3 | ||||||||||||
|
LA-1A-4
|
$[_________]
|
X-A-1A-4 | ||||||||||||
|
LA-1A-5
|
$[_________]
|
X-A-1A-5 | ||||||||||||
|
LA-1A-6
|
$[_________]
|
X-A-1A-6 | ||||||||||||
|
LA-1A-7
|
$[_________]
|
X-A-1A-7 | ||||||||||||
|
LA-1A-8
|
$[_________]
|
X-A-1A-8 | ||||||||||||
|
LA-1A-9
|
$[_________]
|
X-A-1A-9 | ||||||||||||
|
LA-1A-10
|
$[_________]
|
X-A-1A-10 | ||||||||||||
-2-
|
Corresponding
Certificates
|
Original
Class Principal Balance
|
Corresponding
REMIC I Regular Interests (1)
|
Original
REMIC I Principal Balance
|
REMIC I
Pass-Through Rate
|
Corresponding
Components of Class X Certificates (1)
|
|||||||||
|
LA-1A-11
|
$[_________]
|
X-A-1A-11 | ||||||||||
|
LA-1A-12
|
$[_________]
|
X-A-1A-12 | ||||||||||
|
LA-1A-13
|
$[_________]
|
X-A-1A-13 | ||||||||||
|
LA-1A-14
|
$[_________]
|
X-A-1A-14 | ||||||||||
|
LA-1A-15
|
$[_________]
|
X-A-1A-15 | ||||||||||
|
Class
A-M
|
$[_________]
|
LA-M
|
$[_________]
|
(2) | X-A-M | |||||||
|
Class A-J
|
$[_________]
|
LA-J
|
$[_________]
|
(2) | X-A-J | |||||||
|
Class B
|
$[_________]
|
LB
|
$[_________]
|
(2) | X-B | |||||||
|
Class C
|
$[_________]
|
LC
|
$[_________]
|
(2) | X-C | |||||||
|
Class D
|
$[_________]
|
LD
|
$[_________]
|
(2) | X-D | |||||||
|
Class E
|
$[_________]
|
LE-1
|
$[_________]
|
(2) | X-E-1 | |||||||
|
LE-2
|
$[_________]
|
X-E-2 | ||||||||||
|
Class F
|
$[_________]
|
LF-1
|
$[_________]
|
(2) | X-F-1 | |||||||
|
LF-2
|
$[_________]
|
X-F-2 | ||||||||||
|
LF-3
|
$[_________]
|
X-F-3 | ||||||||||
|
Class G
|
$[_________]
|
LG-1
|
$[_________]
|
(2) | X-G-1 | |||||||
|
LG-2
|
$[_________]
|
X-G-2 | ||||||||||
|
Class H
|
$[_________]
|
LH-1
|
$[_________]
|
(2) | X-H-1 | |||||||
|
LH-2
|
$[_________]
|
X-H-2 | ||||||||||
|
LH-3
|
$[_________]
|
X-H-3 | ||||||||||
|
Class J
|
$[_________]
|
LJ-1
|
$[_________]
|
(2) | X-J-1 | |||||||
|
LJ-2
|
$[_________]
|
X-J-2 | ||||||||||
|
Class K
|
$[_________]
|
LK-1
|
$[_________]
|
(2) | X-K-1 | |||||||
|
LK-2
|
$[_________]
|
X-K-2 | ||||||||||
|
LK-3
|
$[_________]
|
X-K-3 | ||||||||||
|
Class L
|
$[_________]
|
LL
|
$[_________]
|
(2) | X-L | |||||||
|
Class M
|
$[_________]
|
LM
|
$[_________]
|
(2) | X-M | |||||||
|
Class N
|
$[_________]
|
LN
|
$[_________]
|
(2) | X-N | |||||||
|
Class O
|
$[_________]
|
LO
|
$[_________]
|
(2) | X-O | |||||||
|
Class P
|
$[_________]
|
LP
|
$[_________]
|
(2) | X-P | |||||||
|
Class
Q
|
$[_________]
|
LQ
|
$[_________]
|
(2) | X-Q | |||||||
|
Class
S
|
$[_________]
|
LS
|
$[_________]
|
(2) | X-S |
-3-
__________________________
|
(1)
|
The
REMIC I Regular Interest or Interests and the Component or Components
of the Class X Certificates that correspond to any particular Class
of Sequential Pay Certificates also correspond to each other and,
accordingly, constitute the Corresponding REMIC I Regular Interests
and the Corresponding Components (if any), respectively, with respect to
each other.
|
|
(2)
|
The
Weighted Average Net Mortgage Rate.
|
The
portion of the Trust Fund consisting of the Additional Interest and amounts held
from time to time in the Additional Interest Account that represent Additional
Interest shall be treated as a grantor trust (the “Additional Interest
Grantor
Trust”) for federal income tax purposes. The Class Z
Certificates represent undivided beneficial interests in such Additional
Interest Grantor Trust. As provided herein, the Trustee shall take
all actions necessary to ensure that the portions of the Trust Fund consisting
of the Additional Interest Grantor Trust maintain their status as a “grantor
trust” under federal income tax law and not be treated as part of either
REMIC I or REMIC II.
The
[_________] ([___]) mortgage loans referred to in this Agreement as the
[__________] Companion Loan and the [__________] Companion Loan (each, a “Companion Loan” and
collectively the “Companion Loans”) are
not part of the Trust Fund but are secured by corresponding Mortgages that
secure certain related Mortgage Loans that are identified on the Mortgage Loan
Schedule as the [__________] Loan (loan number [___]) and the [__________] Loan
(loan number [___]) (each, a “Co-Lender Loan” and
collectively, the “Co-Lender Loans”)
that are part of the Trust Fund.
The
[__________] Loan and the [__________] Pari Passu Companion Loan are pari passu with each
other. As and to the extent provided herein, the Companion Loan will
be serviced and administered in accordance with this Agreement. The
[__________] Loan and the [__________] Companion Loan will be serviced and
administered in accordance with the Pooling and Servicing Agreement (the “[__________] Pooling and
Servicing Agreement”), dated as of [__________], by and among Xxxxx Fargo
Commercial Mortgage Securities, Inc., as depositor (the “[__________]
Depositor”), [__________], as master servicer (the “[__________] Master
Servicer”), [__________], as special servicer (the “[__________] Special
Servicer”), and [__________], as trustee (the “[__________]
Trustee”), pursuant to which the Xxxxx Fargo Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates, Series [__________] were
issued. Amounts attributable to the Companion Loans will not be
assets of the Trust Fund and will be owned by the Companion
Holders.
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer, the Special Servicer and the Trustee agree as
follows:
-4-
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.
“Accrued Certificate
Interest”: With respect to any Class of Regular Certificates
(other than the Class X Certificates) for any Distribution Date, one
month’s interest at the Pass-Through Rate applicable to such Class of
Certificates for such Distribution Date, accrued for the related Interest
Accrual Period on the related Class Principal Balance outstanding immediately
prior to such Distribution Date; and, with respect to the Class X-C and
Class X-P Certificates for any Distribution Date, the sum of the Accrued
Component Interest for the related Interest Accrual Period for all of their
respective Components for such Distribution Date. Accrued Certificate
Interest shall be calculated on a 30/360 Basis and, with respect to any Class of
Regular Certificates for any Distribution Date, shall be deemed to accrue during
the calendar month preceding the month in which such Distribution Date
occurs.
“Accrued Component
Interest”: With respect to each Component of the
Class X-C and Class X-P Certificates for any Distribution Date, one month’s
interest at the Class X-C Strip Rate or Class X-P Strip Rate applicable to
such Component for such Distribution Date, accrued on the Component Notional
Amount of such Component outstanding immediately prior to such Distribution
Date. Accrued Component Interest shall be calculated on a 30/360
Basis and, with respect to any Component and any Distribution Date, shall be
deemed to accrue during the calendar month preceding the month in which such
Distribution Date occurs.
“Acquisition
Date”: With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulations Section 1.856-6(b)(1), which is the
first day on which the Trust Fund is treated as the owner of such REO Property
for federal income tax purposes.
“Actual/360
Basis”: The accrual of interest calculated on the basis of the
actual number of days elapsed during any calendar month in a year assumed to
consist of 360 days.
“Actual/360 Mortgage
Loan”: Each Mortgage Loan that accrues interest on an
Actual/360 Basis and that is identified as an Actual/360 Mortgage Loan on the
Mortgage Loan Schedule.
“Additional Disclosure
Notification”: The form of notification to be included with
any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K
Disclosure Information which is attached hereto as Exhibit
V.
-5-
“Additional Form 10-D
Disclosure”: As defined in Section 8.17(i).
“Additional Form 10-K
Disclosure”: As defined in Section 8.17(k).
“Additional
Interest”: With respect to any ARD Loan after its Anticipated
Repayment Date, all interest accrued on the principal balance of such ARD Loan
at the Additional Interest Rate (the payment of which interest shall, under the
terms of such Mortgage Loan, be deferred until the entire outstanding principal
balance of such ARD Loan has been paid), together with all interest, if any,
accrued at the related Mortgage Rate on such deferred interest. For
purposes of this Agreement, Additional Interest on an ARD Loan or any successor
REO Loan shall be deemed not to constitute principal or any portion thereof and
shall not be added to the unpaid principal balance or Stated Principal Balance
of such ARD Loan or successor REO Loan, notwithstanding that the terms of the
related Mortgage Loan documents so permit. To the extent that any
Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
“Additional Interest
Account”: The segregated account, accounts or subaccounts
created and maintained by the Trustee pursuant to
Section 3.04(d) which shall be entitled “[__________], as Trustee, in
trust for the registered holders of Xxxxx Fargo Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series [__________], Additional
Interest Account.” The Additional Interest Account shall not be an
asset of any REMIC created hereunder .
“Additional Interest Grantor
Trust”: That certain “grantor trust” (within the meaning of
the Grantor Trust Provisions), the assets of which are the Additional Interest
Grantor Trust Assets.
“Additional Interest Grantor
Trust Assets”: The segregated pool of assets consisting of (i) any
Additional Interest with respect to the ARD Loans after their respective
Anticipated Repayment Dates and (ii) amounts held from time to time in the
Additional Interest Account.
“Additional Interest
Rate”: With respect to any ARD Loan after its Anticipated
Repayment Date, the incremental increase in the per annum rate at which such
Mortgage Loan accrues interest after the Anticipated Repayment Date (in the
absence of defaults) as calculated and as set forth in the related Mortgage Loan
documents.
“Additional
Servicer”: Each servicer meeting the requirements of Item
1108(a)(2)(i), (ii) or (iii) of Regulation AB that services any of the Mortgage
Loans, excluding the Master Servicer, the Special Servicer and the
Trustee.
“Additional Trust Fund
Expense”: Any Special Servicing Fees, Workout Fees,
Liquidation Fees and, in accordance with Sections 3.03(d) and 4.03(d),
interest payable to the Master Servicer and/or the Trustee on Advances (to the
extent not offset by Penalty Interest and late payment charges), the cost of
contracting with a Determination Party as set forth in Section 2.03 and amounts
payable to the Special Servicer in connection with inspections of Mortgaged
Properties required pursuant to the first sentence of
Section 3.12(a) (and not otherwise paid from Penalty Interest and late
payment charges), as well as (without duplication) any of the expenses
-6-
of the
Trust Fund that may be withdrawn (x) pursuant to any of clauses (viii),
(ix), (xii), (xiii), (xiv) and (xx) of Section 3.05(a) out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Certificate Account or (y) pursuant to clause (ii) or any of clauses
(iv) through (vi) of Section 3.05(b) out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Distribution Account; provided that for purposes of
the allocations contemplated by Section 4.04, no such expense shall be
deemed to have been incurred by the Trust Fund until such time as the payment
thereof is actually made from the Certificate Account or the Distribution
Account, as the case may be.
“Additional Yield
Amount”: (a) With respect to any Distribution Date and any
Class of Regular Certificates (other than the Class X Certificates and any
Excluded Class) entitled to distributions of principal with respect to Loan
Group 1 pursuant to Section 4.01(a) on such Distribution Date; provided that a Yield
Maintenance Charge and/or Prepayment Premium was actually collected on a
Mortgage Loan or an REO Loan in such Loan Group during the related Collection
Period, the product of (a) such Yield Maintenance Charge and/or Prepayment
Premium multiplied by (b) a fraction, which in no event will be greater
than one, the numerator of which is equal to the positive excess, if any, of
(i) the Pass-Through Rate for such Class of Regular Certificates then
receiving principal over (ii) the related Discount Rate, and the
denominator of which is equal to the positive excess, if any, of (i) the
Mortgage Rate for such Mortgage Loan or REO Loan, as the case may be, over
(ii) the related Discount Rate, multiplied by (c) a fraction, the
numerator of which is equal to the amount of principal distributable on such
Class of Regular Certificates on such Distribution Date pursuant to
Section 4.01(a) with respect to Loan Group 1, and the denominator of which
is equal to the Loan Group 1 Principal Distribution Amount for such Distribution
Date.
(b) With
respect to any Distribution Date and any Class of Regular Certificates (other
than the Class X Certificates and any Excluded Class) entitled to
distributions of principal with respect to Loan Group 2 pursuant to
Section 4.01(a) on such Distribution Date; provided that a Yield
Maintenance Charge and/or Prepayment Premium was actually collected on a
Mortgage Loan or an REO Loan in such Loan Group during the related Collection
Period, the product of (a) such Yield Maintenance Charge and/or Prepayment
Premium multiplied by (b) a fraction, which in no event will be greater
than one, the numerator of which is equal to the positive excess, if any, of
(i) the Pass-Through Rate for such Class of Regular Certificates then
receiving principal over (ii) the related Discount Rate, and the
denominator of which is equal to the positive excess, if any, of (i) the
Mortgage Rate for such Mortgage Loan or REO Loan, as the case may be, over
(ii) the related Discount Rate, multiplied by (c) a fraction, the
numerator of which is equal to the amount of principal distributable on such
Class of Regular Certificates on such Distribution Date pursuant to
Section 4.01(a) with respect to Loan Group 2, and the denominator of which
is equal to the Loan Group 2 Principal Distribution Amount for such Distribution
Date.
(c) For
purposes of the foregoing, to the extent that payments of principal on any Class
of Regular Certificates (other than the Class X Certificates and any Excluded
Class) could be made from principal amounts allocable to Loan Group 1 or
principal amounts allocable to Loan Group 2, the Trustee shall assume that those
payments of principal on that Class of Regular Certificates are made from
amounts allocable to each
-7-
Loan
Group, on a pro rata
basis in accordance with the respective amounts allocable to each Loan Group
that were available for payment on that Class of Certificates.
“Advance”: Any
P&I Advance or Servicing Advance.
“Adverse Grantor Trust
Event”: As defined in Section 10.02(e).
“Adverse
REMIC Event”: As defined in
Section 10.01(h).
“Affiliate”: With
respect to any specified Person, any other Person controlling or controlled by
or under common control with such specified Person. For the purposes
of this definition, “control” when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise and the terms “controlling” and
“controlled”
have meanings correlative to the foregoing.
“Agreement”: This
Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
“Anticipated Repayment
Date”: For each ARD Loan, the date specified in the related
Mortgage Note after which the Mortgage Rate for such ARD Loan will increase as
specified in the related Mortgage Note (other than as a result of a default
thereunder).
“Applicable Requirements of
Regulation AB”: With respect to the Trustee, Item 1108(b), the
last sentence of Item 1108(c)(4), the first sentence of Item 1108(c)(7), Item
1109(a), Item 1109(b), Item 1117 and Item 1119.
“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 §225.62 and conducted in accordance
with the standards of the American Appraisal Institute by an Independent
Appraiser.
“Appraisal Reduction
Amount”: The excess, if any, of (a) the sum of (without
duplication), as calculated by the Special Servicer as of the first
Determination Date immediately succeeding the Special Servicer obtaining
knowledge of the occurrence of the Required Appraisal Date if no new Required
Appraisal is required or the date on which a Required Appraisal (or letter
update or internal valuation, if applicable) is obtained and each Determination
Date thereafter so long as the related Mortgage Loan remains a Required
Appraisal Mortgage Loan (i) the Stated Principal Balance of the subject
Required Appraisal Mortgage Loan, (ii) to the extent not previously
advanced by or on behalf of the Master Servicer or the Trustee, all unpaid
interest on the Required Appraisal Mortgage Loan (including, for such purposes,
the [__________] Companion Loan or any related Subordinate Companion Loan
serviced hereunder) through the most recent Due Date prior to such Determination
Date at a per annum
rate equal to the related Net Mortgage Rate (exclusive of any portion thereof
that constitutes Additional Interest), (iii) all accrued but unpaid
Servicing Fees and all accrued but unpaid Additional Trust Fund Expenses in
respect of such Required Appraisal Mortgage Loan, including, for such purposes,
the [__________] Companion Loan or any related Subordinate Companion Loan
serviced hereunder, (iv) all related unreimbursed Advances and any
Advances
-8-
related
to such Required Appraisal Mortgage Loan that were reimbursed out of general
collections from the pool of Mortgage Loans (plus accrued interest thereon) made
by or on behalf of the Master Servicer or the Trustee with respect to such
Required Appraisal Mortgage Loan and (v) all currently due and unpaid real
estate taxes and unfunded improvement reserves and assessments, insurance
premiums, and, if applicable, ground rents in respect of the related Mortgaged
Property over (b) an amount equal to the sum of (i) the Required
Appraisal Value and (ii) all escrows, reserves and letters of
credit held for the purposes of reserves (provided such letters of
credit may be drawn upon for reserve purposes under the related Mortgage Loan
document) held with respect to such Required Appraisal Mortgage
Loan. If the Special Servicer fails to obtain a Required Appraisal
(or letter update or internal valuation, if applicable) within the time limit
described in Section 3.09(a), the Appraisal Reduction Amount for the
related Required Appraisal Mortgage Loan will equal 25% of the outstanding
principal balance of such Required Appraisal Mortgage Loan to be adjusted upon
receipt of a Required Appraisal or letter update or internal valuation, if
applicable. In the event a Mortgagor fails to make a Balloon Payment
on a scheduled maturity date and no Appraisal has been received within
120 days of such failure, the Appraisal Reduction Amount for the related
Mortgage Loan will equal 25% of the outstanding principal balance of such
Mortgage Loan to be adjusted upon receipt of the new Appraisal. Any
Appraisal Reduction Amount for a Co-Lender Loan shall be allocated as provided
in Section 4.04(d).
“Appraised
Value”: With respect to each Mortgaged Property, the appraised
value thereof based upon the most recent Appraisal (or letter update or internal
valuation, if applicable) that is contained in the related Servicing
File.
“ARD
Loan”: Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Additional Interest at the rate specified in the
related Mortgage Note and the Mortgagor is required to apply excess monthly cash
flow generated by the related Mortgaged Property to the repayment of the
outstanding principal balance on such Mortgage Loan.
“Asset Status
Report”: As defined in Section 3.21(d).
“Assignment of
Leases”: With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
“Assumed Scheduled
Payment”: With respect to any Balloon Mortgage Loan for its
Stated Maturity Date (provided that such Mortgage
Loan has not been paid in full and no other Liquidation Event has occurred in
respect thereof on or before such Stated Maturity Date) and for any Due Date
thereafter as of which such Mortgage Loan remains outstanding and part of the
Trust Fund, the Periodic Payment of principal and/or interest deemed to be due
in respect thereof on such Due Date that would have been due in respect of such
Mortgage Loan on such Due Date if the related Mortgagor had been required to
continue to pay principal in accordance with the amortization schedule, if any,
and to accrue interest at the Mortgage Rate, in effect on the Closing Date and
without regard to the occurrence of its Stated Maturity Date. With
respect to any REO Loan, for any Due Date therefor as of which the related REO
Property remains part of the Trust Fund, the Periodic Payment of principal
and/or interest deemed to be due in respect
-9-
thereof
on such Due Date that would have been due in respect of the predecessor Mortgage
Loan (or, if applicable, Companion Loans) on such Due Date had it remained
outstanding (or, if the predecessor Mortgage Loan was a Balloon Mortgage Loan
and such Due Date coincides with or follows what had been its Stated Maturity
Date, the Assumed Scheduled Payment that would have been deemed due in respect
of the predecessor Mortgage Loan on such Due Date had it remained
outstanding).
“Authenticating
Agent”: Any authenticating agent appointed pursuant to
Section 8.12 (or, in the absence of any such appointment, the
Trustee).
“Available Distribution
Amount”: With respect to any Distribution Date, an amount
equal to, with respect to each Mortgage Loan, (a) the sum of, without
duplication, (i) the aggregate of the amounts on deposit in the Certificate
Account and the Distribution Account as of the close of business on the last day
of the related Collection Period and the amounts collected by or on behalf of
the Master Servicer as of the close of business on the last day of such
Collection Period and required to be deposited in the Certificate Account;
(ii) the aggregate amount of any P&I Advances made by the Master
Servicer or the Trustee for distribution on the Certificates on such
Distribution Date pursuant to Section 4.03; (iii) the aggregate amount
transferred from the REO Account (if established) to the Certificate Account as
of the last day of the related Collection Period, on or prior to the P&I
Advance Date in such month, pursuant to Section 3.16(c); (iv) the
aggregate amount deposited by the Master Servicer in the Certificate Account for
such Distribution Date pursuant to Section 3.19 in connection with
Prepayment Interest Shortfalls; and (v) for each Distribution Date
occurring in March, and for the final Distribution Date if the final
Distribution Date occurs in February or, if such year is not a leap year, in
January, the aggregate of the Interest Reserve Amounts in respect of each
Interest Reserve Loan deposited into the Distribution Account pursuant to
Section 3.05(d), net of (b) the portion of the amount described in
subclauses (a)(i) and (a)(iii) of this definition that represents one
or more of the following: (i) collected Periodic Payments that
are due on a Due Date following the end of the related Collection Period,
(ii) any amounts payable or reimbursable to any Person from the
(A) Certificate Account pursuant to clauses (ii)-(xv), (xix), (xx) and
(xxii) of Section 3.05(a) or (B) the Distribution Account pursuant to
clauses (ii)-(vii) of Section 3.05(b), (iii) Prepayment Premiums
and Yield Maintenance Charges, (iv) Additional Interest, (v) with
respect to the Distribution Date occurring in February of each year and in
January of each year that is not a leap year, the Interest Reserve Amounts with
respect to the Interest Reserve Loans to be withdrawn from the Certificate
Account and remitted to the Trustee for deposit in the Interest Reserve Account
in respect of such Distribution Date and held for future distribution pursuant
to Section 3.04(c), (vi) for the initial Distribution Date only and
each Mortgage Loan originated in [_________] that has its first Due Date in
[_________], any interest amounts relating to the period prior to the Cut-Off
Date of such Mortgage Loan payable to the related Mortgage Loan Seller; and
(vii) any amounts deposited in the Certificate Account or the Distribution
Account in error. The Available Distribution Amount will not include
any amounts required to be distributed pursuant to the terms of any
Intercreditor Agreement or this Agreement to a Companion Holder.
“Balloon Mortgage
Loan”: Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Stated Maturity Date.
-10-
“Balloon
Payment”: With respect to any Balloon Mortgage Loan as of any
date of determination, the Scheduled Payment payable on the Stated Maturity Date
of such Mortgage Loan.
“Bankruptcy
Code”: The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
“Bid
Allocation”: With respect to the Master Servicer and each
Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the
amount of such proceeds (net of any expenses incurred in connection with such
bid and the transfer of servicing), multiplied by a fraction equal to
(a) the Servicer Fee Amount for the Master Servicer or such Sub-Servicer,
as the case may be, as of such date of determination, over (b) the
aggregate of the Servicer Fee Amounts for the Master Servicer and all of the
Sub-Servicers as of such date of determination.
“Book-Entry
Certificate”: Any Certificate registered in the name of the
Depository or its nominee.
“Breach”: As
defined in Section 2.03(a).
“Business
Day”: Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, or the cities in which the
Corporate Trust Office of the Trustee (which as of the Closing Date is
[_________]), the offices of the Master Servicer (which as of the Closing Date
is [_________]) or the offices of the Special Servicer (which as of the Closing
Date is [_________]) are located, are authorized or obligated by law or
executive order to remain closed.
“CERCLA”: The
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended.
“Certificate”: Any
one of the Xxxxx Fargo Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series [__________], 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
“[__________], as Master Servicer for [__________], as Trustee, on behalf of and
in trust for the registered holders of Xxxxx Fargo Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
[__________].” Subject to the related Intercreditor Agreement and
taking into account that (i) each Subordinate Companion Loan is subordinate
to its related Co-Lender Loan to the extent set forth in the related
Intercreditor Agreement, and (ii) each Pari Passu Companion Loan is pari passu with the related
Pari Passu Mortgage Loan, each subaccount described in the next to last
paragraph of Section 3.04(a) that is part of the Certificate Account
shall be for the benefit of the related Companion Holder, to the extent funds on
deposit in such subaccount are attributed to the related Companion
Loan.
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“Certificate Deferred
Interest”: The amount by which interest distributable to any
Class of Sequential Pay Certificates is reduced by the amount of Mortgage
Deferred Interest allocable to such Class of Certificates on any
Distribution Date.
“Certificate
Factor”: With respect to any Class of Regular Certificates as
of any date of determination, a fraction, expressed as a decimal carried to
eight places, the numerator of which is the then current Class Principal
Balance, Class X-C Notional Amount or Class X-P Notional Amount, as
applicable, of such Class of Regular Certificates and the denominator of which
is the Original Class Principal Balance or Original Notional Amount of such
Class of Regular Certificates.
“Certificate Notional
Amount”: With respect to any Class X-C Certificate or
Class X-P Certificate, as of any date of determination, the then notional amount
of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class X-C
Notional Amount or Class X-P Notional Amount, as applicable.
“Certificate
Owner”: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Depository Participant or on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent.
“Certificate Principal
Balance”: With respect to any Sequential Pay Certificate, as
of any date of determination, the then outstanding principal amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced
by such Certificate multiplied by (b) the then Class Principal Balance of
the Class of Certificates to which such Certificate belongs.
“Certificate Register”
and “Certificate
Registrar”: The register maintained and the registrar
appointed pursuant to Section 5.02.
“Certificateholder”: The
Person in whose name a Certificate is registered in the Certificate Register,
except that (i) only a Permitted Transferee shall be the Holder of a
Residual Certificate for any purpose hereof and, (ii) solely for the
purposes of giving any consent, approval or waiver pursuant to this Agreement
that relates to any of the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer or the Trustee in its respective capacity as such
(except with respect to amendments or waivers referred to in Sections 7.04 and
11.01 hereof and any consent, approval or waiver required or permitted to be
made by the Majority Subordinate Certificateholder or the Controlling Class
Representative and any election, removal or replacement of the Special Servicer
or the Controlling Class Representative pursuant to Section 6.09), any
Certificate registered in the name of the Depositor, any Mortgage Loan Seller,
the Master Servicer, the Special Servicer or the Trustee, as the case may be, or
any Certificate registered in the name of any of their respective Affiliates,
shall be deemed not to be outstanding, and the Voting Rights to which it is
entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver that relates to it has been obtained. The Certificate
Registrar shall be entitled to request and rely upon a certificate of the
Depositor, the Master Servicer or the Special Servicer in determining whether a
Certificate is registered in the name of an Affiliate of such
Person. All
-12-
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 8.17(j).
“Class”: Collectively,
all of the Certificates bearing the same alphabetical and, if applicable,
numerical class designation.
“Class A
Certificates”: The Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5 and Class A-1A Certificates.
“Class A-1
Certificate”: Any one of the Certificates with a “Class A-1”
designation on the face thereof, substantially in the form of Exhibit A-1 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class A-1A
Certificate”: Any one of the Certificates with a “Class A-1A”
designation on the face thereof, substantially in the form of Exhibit A-7 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class A-2
Certificate”: Any one of the Certificates with a “Class A-2”
designation on the face thereof, substantially in the form of Exhibit A-2 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class A-3
Certificate”: Any one of the Certificates with a “Class A-3”
designation on the face thereof, substantially in the form of Exhibit A-3 attached
hereto, and evidencing a regular interest in REMIC II for purposes of the REMIC
provisions.
“Class A-4
Certificate”: Any one of the Certificates with a “Class A-4”
designation on the face thereof, substantially in the form of Exhibit A-5 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class A-5
Certificate”: Any one of the Certificates with a “Class A-5”
designation on the face thereof, substantially in the form of Exhibit A-6 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class A-J
Certificate”: Any one of the Certificates with a
“Class A-J” designation on the face thereof, substantially in the form of
Exhibit A-11
attached hereto, and evidencing a “regular interest” in REMIC II for
purposes of the REMIC Provisions.
“Class A-M
Certificate”: Any one of the Certificates with a “Class A-M”
designation on the face thereof, substantially in the form of Exhibit A-10 attached
hereto, and evidencing a “regular interest” in REMIC II for purposes of the
REMIC Provisions.
-13-
“Class A-PB
Certificate”: Any one of the Certificates with a “Class A-PB
designation on the face thereof, substantially in the form of Exhibit A-4 attached
hereto, and evidencing a “regular interest” in REMIC II for purposes of the
REMIC Provisions.
“Class A-PB Planned Principal
Amount”: The planned principal amount set forth on Exhibit R
hereto relating to principal payments for the Class A-PB
Certificates.
“Class B
Certificate”: Any one of the Certificates with a “Class B”
designation on the face thereof, substantially in the form of Exhibit A-12 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class C
Certificate”: Any one of the Certificates with a “Class C”
designation on the face thereof, substantially in the form of Exhibit A-13 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class D
Certificate”: Any one of the Certificates with a “Class D”
designation on the face thereof, substantially in the form of Exhibit A-14 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class E
Certificate”: Any one of the Certificates with a “Class E”
designation on the face thereof, substantially in the form of Exhibit A-15 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class F
Certificate”: Any one of the Certificates with a “Class F”
designation on the face thereof, substantially in the form of Exhibit A-16 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class G
Certificate”: Any one of the Certificates with a “Class G”
designation on the face thereof, substantially in the form of Exhibit A-17 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class H
Certificate”: Any one of the Certificates with a “Class H”
designation on the face thereof, substantially in the form of Exhibit A-18 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class J
Certificate”: Any one of the Certificates with a “Class J”
designation on the face thereof, substantially in the form of Exhibit A-19 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class K
Certificate”: Any one of the Certificates with a “Class K”
designation on the face thereof, substantially in the form of Exhibit A-20 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class L
Certificate”: Any one of the Certificates with a “Class L”
designation on the face thereof, substantially in the form of Exhibit A-21 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
-14-
“Class M
Certificate”: Any one of the Certificates with a “Class M”
designation on the face thereof, substantially in the form of Exhibit A-22 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class N
Certificate”: Any one of the Certificates with a “Class N”
designation on the face thereof, substantially in the form of Exhibit A-23 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class O
Certificate”: Any one of the Certificates with a “Class O”
designation on the face thereof, substantially in the form of Exhibit A-24 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class P
Certificate”: Any one of the Certificates with a “Class P”
designation on the face thereof, substantially in the form of Exhibit A-25 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class Principal
Balance”: The aggregate principal balance of any Class of
Sequential Pay Certificates outstanding from time to time. As of the
Closing Date, the Class Principal Balance of each Class of Sequential Pay
Certificates shall equal the Original Class Principal Balance
thereof. On each Distribution Date, the Class Principal Balance of
each such Class of Certificates shall be reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, and shall be further reduced by the
amount of any Realized Losses and Additional Trust Fund Expenses allocated
thereto on such Distribution Date pursuant to
Section 4.04(a). The Class Principal Balance of any Class of
Sequential Pay Certificates will be increased on any Distribution Date by the
amount of any Certificate Deferred Interest allocated to such Class on such
Distribution Date. Distributions in respect of a reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Sequential Pay Certificates shall not constitute distributions of
principal and shall not result in reduction of the related Class Principal
Balance.
“Class Q
Certificate”: Any one of the Certificates with a “Class Q”
designation on the face thereof, substantially in the form of Exhibit A-26 attached
hereto, and evidencing a “regular interest” in REMIC II for purposes of the
REMIC provisions.
“Class R-I
Certificate”: Any one of the Certificates with a
“Class R-I” designation on the face thereof, substantially in the form of
Exhibit A-28
attached hereto, and evidencing the sole class of residual interests in
REMIC I for purposes of the REMIC Provisions.
“Class R-II
Certificate”: Any one of the Certificates with a
“Class R-II” designation on the face thereof, substantially in the form of
Exhibit A-29
attached hereto, and evidencing the sole class of “residual interests” in
REMIC II for purposes of the REMIC Provisions.
“Class S
Certificate”: Any one of the Certificates with a “Class S”
designation on the face thereof, substantially in the form of Exhibit A-27 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class X
Certificates”: The Class X-C and Class X-P
Certificates.
-15-
“Class X-C
Certificate”: Any one of the Certificates with a “Class X-C”
designation on the face thereof, substantially in the form of Exhibit A-8 attached
hereto, and evidencing a “regular interest” in REMIC II for purposes of the
REMIC Provisions.
“Class X-C Notional
Amount”: With respect to the Class X-C Certificates and any
date of determination, the sum of the then Component Notional Amounts of all of
the Components.
“Class X-C Strip
Rate”: With respect to any Class of Components (other than
Components that are also Class X-P Components) for any Distribution Date, a rate
per annum equal to
(i) the Weighted Average Net Mortgage Rate for such Distribution Date,
minus (ii) the
Pass-Through Rate for the Corresponding Certificates. In the case of
any Class of Components that are also Class X-P Components, (i) for any
Distribution Date occurring on or before the related Class X-P Component
Crossover Date, (x) the Weighted Average Net Mortgage Rate for such Distribution
Date minus (y) the sum
of the Pass-Through Rate for the Corresponding Certificates for such
Distribution Date and the Class X-P Strip Rate for such Component for such
Distribution Date, and (ii) for any Distribution Date occurring after the
related Class X-P Component Crossover Date, a rate per annum equal to (x) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (y) the Pass-Through
Rate for the Corresponding Certificates (provided that in no event
shall any Class X-C Strip Rate be less than zero).
“Class X-P
Certificate”: Any one of the Certificates with a “Class X-P”
designation on the face thereof, substantially in the form of Exhibit A-9 attached
hereto, and evidencing the Class X-P Components and a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class X-P Component
Crossover Date”: With respect to each Component set forth in
the table below, the Distribution Date occurring in the month and year set forth
in the table below:
|
Component
|
Cross-Over
Date
|
|
Component
X-A-1-2 and Component X-A-1A-2
|
[_________]
|
|
Component
X-A-1-3 and Component X-A-1A-3
|
[_________]
|
|
Component
X-A-1-4, Component X-A-2-1 and Component X-A-1A-4
|
[_________]
|
|
Component X-A-2-2
and Component X-A-1A-5
|
[_________]
|
|
Component
X-A-2-3, Component X-A-3, Component X-A-PB-1, Component X-A-1A-6 and
Component X-K-1
|
[_________]
|
|
Component
X-X-XX-0, Xxxxxxxxx X-X-0X-0, Xxxxxxxxx X-X-0
|
[_________]
|
|
Component
X-A-PB-3, Component X-A-1A-8, Component X-J-1 and Component
X-K-3
|
[_________]
|
|
Component
X-A-PB-4, Component X-A-4-1, Component X-A-1A-9, Component X-H-1 and
Component X-J-2
|
[_________]
|
-00-
|
Xxxxxxxxx
X-X-0-0, Xxxxxxxxx X-X-0X-00 and Component X-H-2
|
[_________]
|
|
Component
X-A-4-3, Component X-A-1A-11, Component X-G-1 and Component
X-H-3
|
[_________]
|
|
Component
X-A-4-4, Component X-A-1A-12, Component X-F-1 and Component
X-G-2
|
[_________]
|
|
Component
X-A-4-5, Component X-A-1A-13 and Component X-F-2
|
[_________]
|
|
Component
X-X-0-0, Xxxxxxxxx X-X-0X-00, Xxxxxxxxx X-X-0 and Component
X-F-3
|
[_________]
|
|
Component
X-A-4-7, Component X-A-1A-15, and Component X-E-2
|
[_________]
|
“Class X-P
Components”: Each of Component X-A-1-2, Component X-A-1-3,
Component X-A-1-4, Component X-A-1A-2, Component X-A-1A-3, Component X-A-1A-4,
Component X-A-1A-5, Component X-A-1A-6, Component X-A-1A-7, Component X-A-1A-8,
Component X-A-1A-9, Component X-A-1A-10, Component X-A-1A-11, Component
X-A-1A-12, Component X-A-1A-13, Component X-A-1A-14, Component X-A-1A-15,
Component X-A-2-1, Component X-A-2-2, Component X-A-2-3, Component X-A-3,
Component X-A-4-1, Component X-A-4-2, Component X-A-4-3, Component X-A-4-4,
Component X-A-4-5, Component X-A-4-6, Component X-A-4-7, Component X-A-5-1,
Component X-A-5-2, Component X-A-5-3, Component X-A-PB-1, Component X-A-PB-2,
Component X-A-PB-3, Component X-A-PB-4, Component X-A-M, Component X-A-J,
Component X-B, Component X-C, Component X-D, Component X-E-1, Component X-E-2,
Component X-F-1, Component X-F-2, Component X-F-3, Component X-G-1, Component
X-G-2, Component X-H-1, Component X-H-2, Component X-H-3, Component X-J-1,
Component X-J-2, Component X-K-1, Component X-K-2 and Component
X-K-3.
“Class X-P Notional
Amount”: As of any date of determination, the sum of the then
Component Notional Amounts of the Class X-P Components, excluding those Class
X-P Components for which the Class X-P Component Crossover Date has previously
passed.
“Class X-P Reference
Rate”: For any Distribution Date, the rate per annum corresponding to
such Distribution Date on Exhibit T.
“Class X-P Strip
Rate”: With respect to each of the Class X-P Components for
any Distribution Date, a rate per annum equal to
(i) for any Distribution Date occurring on or before the related Class X-P
Component Crossover Date, (x) the lesser of (i) the Weighted Average Net
Mortgage Rate for such Distribution Date and (ii) the Class X-P Reference
Rate for such Distribution Date minus [___]% per annum minus (y) the
Pass-Through Rate for the Corresponding Certificates (provided that in no event
shall any Class X-P Strip Rate be less than zero), and (ii) for any
Distribution Date occurring after the related Class X-P Component Crossover
Date, 0% per
annum.
-17-
“Class Z
Certificate”: Any one of the Certificates with a “Class Z”
designation on the face thereof, substantially in the form of Exhibit A-30 attached
hereto, and evidencing an undivided beneficial interest in the Additional
Interest that is described in Section 4.01(b).
“Closing
Date”: [_________].
“CMSA”: The
Commercial Mortgage Securities Association (formerly the Commercial Real Estate
Secondary Market and Securitization Association) or any successor
organization.
“CMSA Advance Recovery
Report”: The report substantially in the form of, and
containing the information called for in, the downloadable form of the “Advance
Recovery Report” available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
“CMSA Bond
File”: The monthly report substantially in the form of, and
containing the information called for in, the downloadable form of the “CMSA Bond Level File”
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
“CMSA Collateral Summary
File”: The report substantially in the form of, and containing
the information called for in, the downloadable form of the “Collateral Summary
File” available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
“CMSA Comparative Financial
Status Report”: The report substantially in the form of, and
containing the information called for in, the downloadable form of the “Comparative Financial Status
Report” available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information as may from time to time be
approved by the CMSA for commercial mortgage securities transactions
generally. In connection with preparing the CMSA Comparative
Financial Status Report, the Master Servicer shall process (a) interim
financial statements beginning with interim financial statements for the fiscal
quarter ending [__________] and (b) annual financial statements beginning
with annual financial statements for the [____] 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
-18-
and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
“CMSA Historical Liquidation
Report”: The report substantially in the form of, and
containing the information called for in, the downloadable form of the “Historical Liquidation
Report” available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
“CMSA Historical Loan
Modification and Corrected Mortgage Loan Report”: A report
substantially in the form of, and containing the information called for in, the
downloadable form of the “Historical Loan Modification
and Corrected Mortgage Loan Report” available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be approved
by the CMSA for commercial mortgage securities transactions
generally.
“CMSA Loan Level Reserve/LOC
Report”: The report substantially in the form of, and
containing the information called for in, the downloadable form of the “CMSA Loan Level Reserve/LOC
Report” available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information as may from time to time be
approved by the CMSA for commercial mortgage securities transactions
generally.
“CMSA Loan Periodic Update
File”: The monthly report substantially in the form of, and
containing the information called for in, the downloadable form of the “Loan Periodic Update
File” available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
“CMSA Loan Setup
File”: The report substantially in the form of, and containing
the information called for in, the downloadable form of the “Loan Setup File”
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
“CMSA NOI Adjustment
Worksheet”: A report substantially in the form of, and
containing the information called for in, the downloadable form of the “NOI Adjustment
Worksheet” available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions and in any event, shall present the
computations made in accordance with the methodology described in such form to
“normalize” the
full year net operating income and debt service coverage numbers used in the
other reports required by this Agreement.
“CMSA Operating Statement
Analysis”: A report substantially in the form of, and
containing the information called for in, the downloadable form of the “Operating Statement
-19-
Analysis Report” available as of the Closing Date
on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage-backed securities transactions
generally. In connection with preparing the CMSA Operating Statement
Analysis, the Master Servicer shall process (a) interim financial
statements beginning with interim financial statements for the fiscal quarter
ending [__________] and (b) annual financial statements beginning with
annual financial statements for the [____] fiscal year.
“CMSA Property
File”: A report substantially in the form of, and containing
the information called for in, the downloadable form of the “Property File”
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
“CMSA Reconciliation of Funds
Report”: The monthly report in the “Reconciliation of Funds”
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally.
“CMSA REO Status
Report”: A report substantially in the form of, and containing
the information called for in, the downloadable form of the “REO Status Report”
available as of the Closing Date on the CMSA Website, or in such other form for
the presentation of such information and containing such additional information
as may from time to time be approved by the CMSA for commercial mortgage
securities transactions generally.
“CMSA Servicer
Watchlist”: For any Determination Date, a report substantially
in the form of, and containing the information called for in, the downloadable
form of the “Servicer
Watchlist/Portfolio Review Guidelines” available as of the Closing Date
on the CMSA Website, or in such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as approved by the CMSA for commercial mortgage securities
transactions generally.
“CMSA
Website”: The website maintained by the CMSA with an address,
as of the Closing Date, of “xxx.xxxx.xxx”.
“Code”: The
Internal Revenue Code of 1986, as amended, and applicable temporary or final
regulations of the U.S. Department of the Treasury promulgated
thereunder.
“Co-Lender
Loans”: As defined in the Preliminary Statement.
“Collection
Period”: With respect to any Distribution Date, the period
that begins on the twelfth day in the month immediately preceding the month in
which such Distribution Date occurs (or, in the case of the initial Distribution
Date, commencing on the day after the related Cut-Off Date) and ending on and
including the eleventh day in the month in which such Distribution Date
occurs. Notwithstanding the foregoing, in the event that the last day
of a Collection Period is not a Business Day, any Periodic Payments or Principal
Prepayments with respect to the Mortgage Loans relating to a Due Date occurring
in such Collection Period (but for
-20-
the
application of the next Business Day convention) received on the Business Day
immediately following such day will be deemed to have been received during such
Collection Period and not during any other Collection Period. In
addition, notwithstanding the foregoing, with respect to any Distribution Date,
in the event that the Due Date, including any grace period, with respect to any
Mortgage Loan relating to such Distribution Date occurs after the last day of
the related Collection Period, any payments received with respect to the related
Mortgage Loan on or before such Due Date as extended by any applicable grace
period (including without limitation, any prepayments) will be deemed to have
been received during such Collection Period and not during any other Collection
Period.
“Commission”: The
Securities and Exchange Commission or any successor agency.
“Companion Distribution
Account”: With respect to the Companion Loans, other than the
[__________] Companion Loan, the separate account(s) or subaccount(s) created
and maintained by the Companion Paying Agent pursuant to
Section 3.04(b) and held on behalf of the Companion Holders, which
shall be entitled “[__________], as Companion Paying Agent for the Companion
Holders of the Companion Loans relating to the Xxxxx Fargo Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
[__________].” The Companion Distribution Accounts shall not be
assets of the Trust Fund, but instead each Companion Distribution Account shall
be held by the Companion Paying Agent on behalf of the applicable Companion
Holder. Any such account shall be an Eligible Account or a subaccount
of an Eligible Account. Notwithstanding the foregoing, if the Master
Servicer and the Companion Paying Agent are the same entity, the Companion
Distribution Account may be the related subaccount or subaccounts of the
Certificate Account referenced in the second to the last paragraph of
Section 3.04(a).
“Companion
Holder”: With respect to any Companion Loan, the owner of the
Mortgage Note representing such Companion Loan.
“Companion
Loan”: As defined in the Preliminary Statement.
“Companion Paying
Agent”: The paying agent appointed pursuant to
Section 3.26.
“Companion
Register”: The register maintained by the Companion Paying
Agent pursuant to Section 3.27.
“Component”: Each
of Component X-A-1-1, Component X-A-1-2, Component X-A-1-3, Component
X-A-1-4, Component X-A-1A-1, Component X-A-1A-2, Component X-A-1A-3, Component
X-A-1A-4, Component X-A-1A-5, Component X-A-1A-6, Component X-A-1A-7, Component
X-A-1A-8, Component X-A-1A-9, Component X-A-1A-10, Component X-A-1A-11,
Component X-A-1A-12, Component X-A-1A-13, Component X-A-1A-14, Component
X-A-1A-15, Component X-A-2-1, Component X-A-2-2, Component X-A-2-3, Component
X-A-3, Component X-A-4-1, Component X-A-4-2, Component X-A-4-3, Component
X-A-4-4, Component X-A-4-5, Component X-A-4-6, Component X-A-4-7, Component
X-A-5-1, Component X-A-5-2, Component X-A-5-3,
-21-
Component
X-A-PB-1, Component X-A-PB-2, Component X-A-PB-3, Component X-A-PB-4, Component
X-A-M, Component X-A-J, Component X-B, Component X-C, Component X-D, Component
X-E-1, Component X-E-2, Component X-F-1, Component X-F-2, Component X-F-3,
Component X-G-1, Component X-G-2, Component X-H-1, Component X-H-2,
Component X-H-3, Component X-J-1, Component X-J-2, Component X-K-1, Component
X-K-2, Component X-K-3, Component X-L, Component X-M, Component X-N, Component
X-O, Component X-P, Component X-Q and Component X-S.
“Component
X-A-1-1”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LA-1-1 as of any
date of determination.
“Component
X-A-1-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1-2 as of any date of
determination.
“Component
X-A-1-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1-3 as of any date of
determination.
“Component
X-A-1-4”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1-4 as of any date of
determination.
“Component
X-A-1A-1”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LA-1A-1 as of
any date of determination.
“Component
X-A-1A-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-2 as of any date of
determination.
“Component
X-A-1A-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-3 as of any date of
determination.
“Component
X-A-1A-4”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-4 as of any date of
determination.
“Component
X-A-1A-5”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional
-22-
Amount
equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LA-1A-5 as of any date of determination.
“Component
X-A-1A-6”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-6 as of any date of
determination.
“Component
X-A-1A-7”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-7 as of any date of
determination.
“Component
X-A-1A-8”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-8 as of any date of
determination.
“Component
X-A-1A-9”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-9 as of any date of
determination.
“Component
X-A-1A-10”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-10 as of any date of
determination.
“Component
X-A-1A-11”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-11 as of any date of
determination.
“Component
X-A-1A-12”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-12 as of any date of
determination.
“Component
X-A-1A-13”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-13 as of any date of
determination.
“Component
X-A-1A-14”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-14 as of any date of
determination.
-23-
“Component
X-A-1A-15”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-15 as of any date of
determination.
“Component
X-A-2-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-2-1 as of any date of
determination.
“Component
X-A-2-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-2-2 as of any date of
determination.
“Component
X-A-2-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-2-3 as of any date of
determination.
“Component
X-A-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-3 as of any date of
determination.
“Component
X-A-4-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-4-1 as of any date of
determination.
“Component
X-A-4-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-4-2 as of any date of
determination.
“Component
X-A-4-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-4-3 as of any date of
determination.
“Component
X-A-4-4”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-4-4 as of any date of
determination.
“Component
X-A-4-5”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional
-24-
Amount
equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LA-4-5 as of any date of determination.
“Component
X-A-4-6”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-4-6 as of any date of
determination.
“Component
X-A-4-7”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-4-7 as of any date of
determination.
“Component
X-A-5-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-5-1 as of any date of
determination.
“Component
X-A-5-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-5-2 as of any date of
determination.
“Component
X-A-5-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-5-3 as of any date of
determination.
“Component
X-A-J”: One of the [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-J as of any date of
determination.
“Component
X-A-M”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-M as of any date of
determination.
“Component
X-A-PB-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-PB-1 as of any date of
determination.
“Component
X-A-PB-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-PB-2 as of any date of
determination.
-25-
“Component
X-A-PB-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-PB-3 as of any date of
determination.
“Component
X-A-PB-4”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-PB-4 as of any date of
determination.
“Component
X-B”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LB as of any date of
determination.
“Component
X-C”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LC as of any date of
determination.
“Component
X-D”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LD as of any date of
determination.
“Component
X-E-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LE-1 as of any date of
determination.
“Component
X-E-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LE-2 as of any date of
determination.
“Component
X-F-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LF-1 as of any date of
determination.
“Component
X-F-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LF-2 as of any date of
determination.
“Component
X-F-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount
-26-
equal to
the then current REMIC I Principal Balance of REMIC I Regular Interest
LF-3 as of any date of determination.
“Component
X-G-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LG-1 as of any date of
determination.
“Component
X-G-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LG-2 as of any date of
determination.
“Component
X-H-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LH-1 as of any date of
determination.
“Component
X-H-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LH-2 as of any date of
determination.
“Component
X-H-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LH-3 as of any date of
determination.
“Component
X-J-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates having a
Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LJ-1 as of any date of
determination.
“Component
X-J-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates having a
Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LJ-2 as of any date of
determination.
“Component
X-K-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LK-1 as of any
date of determination.
“Component
X-K-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LK-2 as of any
date of determination.
-27-
“Component
X-K-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LK-3 as of any
date of determination.
“Component
X-L”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LL as of any
date of determination.
“Component
X-M”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LM as of any
date of determination.
“Component
X-N”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LN as of any
date of determination.
“Component
X-O”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LO as of any
date of determination.
“Component
X-P”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LP as of any
date of determination.
“Component
X-Q”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LQ as of any
date of determination.
“Component
X-S”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LS as of any
date of determination.
“Controlling
Class”: With respect to each Mortgage Loan as of any date of
determination, the Class of Sequential Pay Certificates, (i) which bears
the latest payment priority and (ii) the Class Principal Balance of which
is greater than 25% of the Original Class Principal Balance thereof; provided, however, that if no Class of
Sequential Pay Certificates satisfies clause (ii) above, the Controlling
Class shall be the outstanding Class of Sequential Pay Certificates bearing
the latest payment priority. With respect to determining the
Controlling Class, the Class A-1, Class A-2, Class A-3, Class
A-PB, Class A-4, Class A-5 and Class A-1A Certificates shall be deemed a single
Class of Certificates.
“Controlling Class
Representative”: As defined in
Section 3.25(a).
“Controlling
Person”: With respect to any Person, any other Person who
“controls” such Person within the meaning of the Securities Act.
-28-
“Corporate Trust
Office”: The corporate trust office of the Trustee at which at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
Agreement is located at (i) with respect to maintenance of the Certificate
Registrar and the transfer and exchange of Certificates, the office of the
Trustee located at [_________] and (ii) for all other purposes, the office
of the Trustee located at [_________].
“Corrected Mortgage
Loan”: Any Mortgage Loan and, if applicable, any Companion
Loan that had been a Specially Serviced Mortgage Loan but has ceased to be a
Specially Serviced Mortgage Loan in accordance with the definition of “Specially Serviced Mortgage
Loan.”
“Corresponding
Certificate”: As defined in the Preliminary Statement with
respect to any Corresponding Component or any Corresponding REMIC I Regular
Interest.
“Corresponding
Component”: As defined in the Preliminary Statement with
respect to any Corresponding Certificate or any Corresponding REMIC I
Regular Interest.
“Corresponding REMIC I
Regular Interest”: As defined in the Preliminary Statement
with respect to any Class of Corresponding Certificates or any Corresponding
Component of the Class X-C Certificates or Class X-P
Certificates.
“Crossed
Group”: With respect to any Mortgage Loan, such Mortgage Loan
and all other Mortgage Loans that are cross-collateralized and cross-defaulted
with such Mortgage Loan.
“Crossed
Loan”: A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
“Crossed Loan Repurchase
Criteria”: (i) The Debt Service Coverage Ratio for all
remaining related Crossed Loans for the four calendar quarters immediately
preceding the repurchase or substitution is not less than the Debt Service
Coverage Ratio for all such related Crossed Loans, including the affected
Crossed Loan, for the four calendar quarters immediately preceding the
repurchase or substitution, (ii) the Loan-to-Value Ratio for any remaining
related Crossed Loans determined at the time of repurchase or substitution based
upon an Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller is not greater than the Loan-to-Value Ratio for all such
related Crossed Loans, including the affected Crossed Loan, determined at the
time of repurchase or substitution based upon an Appraisal obtained by the
Special Servicer at the expense of the related Mortgage Loan Seller and
(iii) the Mortgage Loan Seller, at its expense, shall have furnished the
Trustee with an Opinion of Counsel that the repurchase of or substitution for a
Crossed Loan, including, without limitation, any modification relating to such
repurchase or substitution, shall not cause an Adverse
REMIC Event.
“Custodian”: A
Person who is at any time appointed by the Trustee pursuant to Section 8.11
as a document custodian for the Mortgage Files, which Person shall not be the
Depositor, a Mortgage Loan Seller or an Affiliate of the Depositor or a Mortgage
Loan Seller. If no such custodian has been appointed or if such
custodian has been so appointed, but the Trustee shall have terminated such
appointment, then the Trustee shall be the Custodian.
-29-
“Cut-Off
Date”: With respect to any Mortgage Loan or Companion Loan,
the Due Date for such Mortgage Loan or Companion Loan in
[__________].
“Cut-Off Date
Balance”: With respect to any Mortgage Loan or Companion Loan,
the outstanding principal balance of such Mortgage Loan or Companion Loan as of
the Cut-Off Date, after application of all unscheduled payments of principal
received on or before such date and the principal component of all Periodic
Payments due on or before such date, whether or not received.
“Debt Service Coverage
Ratio”: With respect to any Mortgage Loan, as of any date of
determination, the ratio of (x) the annualized Net Operating Income (before
payment of any debt service on such Mortgage Loan) generated by the related
Mortgaged Property during the most recently ended period of not less than six
months and not more than twelve months for which financial statements, if
available (whether or not audited) have been received by or on behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or the Special Servicer (following the Closing Date), to (y) twelve times the
amount of the Periodic Payment in effect for such Mortgage Loan as of such date
of determination.
“Defaulted Mortgage
Loan”: A Mortgage Loan (i) that is delinquent sixty days
or more in respect to a Periodic Payment (not including the Balloon Payment) or
(ii) is delinquent in respect of its Balloon Payment unless the Master
Servicer has, on or prior to the Due Date of such Balloon Payment, received
written evidence from an institutional lender of such lender’s binding
commitment to refinance such Mortgage Loan within 60 days after the Due Date of
such Balloon Payment (provided that, if such
refinancing does not occur during such time specified in the commitment, the
related Mortgage Loan will immediately become a Defaulted Mortgage Loan), in
either case such delinquency to be determined without giving effect to any grace
period permitted by the related Mortgage or Mortgage Note and without regard to
any acceleration of payments under the related Mortgage and Mortgage Note, or
(iii) as to which the Master Servicer or Special Servicer has, by written
notice to the related Mortgagor, accelerated the maturity of the indebtedness
evidenced by the related Mortgage Note.
“Defaulting
Party”: As defined in section 7.01(b).
“Defeasance
Collateral”: With respect to any Defeasance Loan, the United
States government securities required or permitted to be pledged in lieu of
prepayment pursuant to the terms thereof.
“Defeasance
Loan”: Any Mortgage Loan identified as a Defeasance Loan on
the Mortgage Loan Schedule which permits or requires the related Mortgagor (or
permits the holder of such Mortgage Loan to require the related Mortgagor) to
pledge Defeasance Collateral to such holder in lieu of prepayment.
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation by
a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy
Code.
“Definitive
Certificate”: As defined in Section 5.03(a).
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“Depositor”: Xxxxx
Fargo Commercial Mortgage Securities, Inc. or its successor in
interest .
“Depository”: The
Depository Trust Company, or any successor Depository hereafter named as
contemplated by Section 5.03(c). The nominee of the initial
Depository for purposes of registering those Certificates that are to be
Book-Entry Certificates is Cede & Co. The Depository shall at all
times be a “clearing
corporation” as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a “clearing agency”
registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934, as amended.
“Depository
Participant”: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
“Determination
Date”: The eleventh day of each month, or if such eleventh day
is not a Business Day, the Business Day immediately succeeding, commencing in
[__________].
“Determination
Party”: [__________], or a second party that would qualify as
a successor Special Servicer mutually agreeable to the Special Servicer, the
Controlling Class Representative and the applicable Mortgage Loan Seller, or any
successor in interest thereto; provided that (a) [each such
party is on the list of approved special servicers by Moody’s and on S&P’s
Select Servicer List as a U.S. Commercial Mortgage Special Servicer] or (b) each
Rating Agency has confirmed in writing that contracting with such Determination
Party would not result in a downgrade, qualification or withdrawal of the then
current rating assigned to any of the Certificates that are then currently rated
by such Rating Agency.
“Directly
Operate”: With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management of such REO
Property, the holding of such REO Property primarily for sale or lease or the
performance of any construction work thereon, in each case other than through an
Independent Contractor; provided, however, that the Trustee (or
the Special Servicer or any Sub-Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Special Servicer or any Sub-Servicer on behalf of the Trustee) establishes
rental terms, chooses tenants, enters into or renews leases, deals with taxes
and insurance, or makes decisions as to repairs or capital expenditures with
respect to such REO Property.
“Discount
Rate”: With respect to any prepaid Mortgage Loan or REO Loan
for purposes of allocating any Yield Maintenance Charge or Prepayment Premium
received thereon or with respect thereto among the respective Classes of the
Sequential Pay Certificates (other than any Excluded Class thereof), an
amount, calculated by the Master Servicer and reported to the Trustee pursuant
to Section 4.02(b), will be equal to the discount rate stated in the related
Mortgage Loan documents used in calculating the Yield Maintenance Charge or
Prepayment Premium with respect to such principal prepayment. To the
extent that a discount rate is not stated therein, the “Discount Rate” will
be equal to the yield (when compounded monthly) on the U.S. Treasury issue with
a maturity date closest to the maturity date for such prepaid Mortgage Loan or
REO Loan. In the event there are two or more such U.S. Treasury
issues (a) with the same coupon, the issue with the lowest yield shall
apply, and (b) with maturity dates equally
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close to
the maturity date for the prepaid Mortgage Loan or REO Loan, the issue with the
earliest maturity date shall apply.
“Disqualified Non-United
States Persons”: With respect to a Class R-I or
Class R-II Certificate, any Non-United States Person or agent thereof other
than (i) a Non-United States Person that holds the Class R-I or
Class R-II Certificate in connection with the conduct of a trade or
business within the United States and has furnished the transferor and the
Certificate Registrar with an effective IRS Form W-8ECI (or successor form) or
(ii) a Non-United States Person that has delivered to both the transferor
and the Certificate Registrar an opinion of a nationally recognized tax counsel
to the effect that the transfer of the Class R-I or Class R-II
Certificate to it is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such transfer of the Class R-I
or Class R-II Certificate will not be disregarded for federal income tax
purposes.
“Disqualified
Organization”: Any of the following: (i) the
United States or a possession thereof, any State or any political subdivision
thereof, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing,
(iii) any organization (except certain farmers’ cooperatives described in
Section 1 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income),
(iv) rural electric and telephone cooperatives described in
Section 1381 of the Code or (v) any other Person so designated by the
Trustee or the Certificate Registrar based upon an Opinion of Counsel (which
shall not be an expense of the Trustee) that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause the Trust Fund or
any Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms “United States,”
“State” and
“international
organization” shall have the meanings set forth in Section 7701 of
the Code or successor provisions.
“Distributable Certificate
Interest”: With respect to: (a) any Class of
Sequential Pay Certificates for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced other than with respect to the Class X Certificates (to not less than
zero) by (i) the product of (A) any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date and (B) a fraction, expressed as a decimal,
the numerator of which is the Accrued Certificate Interest in respect of such
Class of Certificates for such Distribution Date, and the denominator of which
is the aggregate Accrued Certificate Interest in respect of all the Classes of
Sequential Pay Certificates for such Distribution Date, and (ii) with
respect to each such Class, such Class’ share of any Certificate Deferred
Interest allocated to such Class of Certificates in accordance with
Section 4.04(c); and (b) any Class of Class X Certificates for any
Distribution Date, the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date.
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“Distribution
Account”: The segregated account, accounts or subaccounts
created and maintained by the Paying Agent on behalf of the Trustee pursuant to
Section 3.04(b) which shall be entitled “[__________], as Trustee, in
trust for the registered holders of Xxxxx Fargo Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series [__________].”
“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 Mortgage Loan on or prior
to its Stated Maturity Date or any Companion Loan on or prior to its maturity
date, the day of the month set forth in the related Mortgage Note on which each
Periodic Payment on such Mortgage Loan or Companion Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date or any
Companion Loan after its maturity date, the day of the month set forth in the
related Mortgage Note on which each Periodic Payment on such Mortgage Loan or
Companion Loan had been scheduled to be first due and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Periodic Payment on the related Mortgage Loan had been scheduled to be first
due.
“XXXXX”: The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
“Eligible
Account”: Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, and (a) with respect
to deposits held for 30 days or more in such account, the long-term
deposit or unsecured debt obligations of which are rated at least (A) [“Aa3” by Moody’s (if
then rated by Moody’s)], and (B) [“AA-” by S&P (or “A-”; provided the short-term
unsecured debt obligations are rated at least “A-1” by S&P)] (or, with
respect to any such Rating Agency, such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the applicable Rating Agency), at any
time such funds are on deposit therein or (b) with respect to deposits held for
less than 30 days in such account, the short-term deposits of which are rated at
least [“P-1” by
Moody’s (if then rated by Moody’s)], and [“A-1” by S&P] (or, with respect to
any such Rating Agency, such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the Certificates) as
evidenced in writing by the applicable Rating Agency at any time such funds are
on deposit therein; or (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company acting in its fiduciary capacity, which, in the case of a state
chartered depository institution or trust company, is subject to regulations
regarding fiduciary funds on deposit therein substantially similar to 12 CFR §
9.10(b), the long term deposits or unsecured debt of which, or if it is the
wholly-owned subsidiary of an entity the long-term deposits or unsecured
obligations of which, are rated at least “Baa3” by Moody’s and which has a
combined capital and surplus of at least $50,000,000; or (iii) any other
account, the use of which would not,
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in and of
itself, cause a qualification, downgrading or withdrawal of the then-current
rating assigned to any Class of Certificates, as confirmed in writing by each
Rating Agency.
“Environmental
Assessment”: A “Phase I assessment”
as described in, and meeting the criteria of, (i) Chapter 5 of the FNMA
Multifamily Guide or any successor provisions covering the same subject matter
in the case of a Specially Serviced Mortgage Loan as to which the related
Mortgaged Property is multifamily property or (ii) the American Society
for Testing and Materials in the case of Specially Serviced Mortgage Loan as to
which the related Mortgaged Property is not multifamily property.
“ERISA”: The
Employee Retirement Income Security Act of 1974, as amended, and any regulations
and administrative pronouncements thereunder.
“ERISA Restricted
Certificate”: Any Class L, Class M, Class N,
Class O, Class P, Class Q or Class S Certificate; provided that any such
Certificate (a) will cease to be considered an ERISA Restricted Certificate
and (b) will cease to be subject to the transfer restrictions related to
ERISA Restricted Certificates contained in Section 5.02(c) if, as of
the date of a proposed transfer of such Certificate, either (i) it is rated
in one of the four highest generic ratings categories by a Rating Agency or
(ii) relevant provisions of ERISA and the Code would permit transfer of
such Certificate to a Plan without resulting in a non-exempt prohibited
transaction.
“Escrow
Payment”: Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and other similar items in respect of the related Mortgaged
Property.
“Event of
Default”: One or more of the events described in
Section 7.01(a).
“Exchange
Act”: Securities Exchange Act of 1934, as
amended.
“Excluded
Class”: Any Class of Sequential Pay Certificates other than
the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-PB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J and
Class K Certificates.
“Exemptions”: Department
of Labor Prohibited Transaction Exemption (“PTE”)
[_________] and [_________], each as amended from time to
time, or any successor thereto.
“FDIC”: Federal
Deposit Insurance Corporation or any successor.
“FHLMC”: Federal
Home Loan Mortgage Corporation or any successor.
“Final Recovery
Determination”: A determination by the Special Servicer with
respect to any Defaulted Mortgage Loan (and, if applicable, any defaulted
Companion Loan) or REO Property that there has been a recovery of all Insurance
Proceeds, Liquidation Proceeds and
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other
payments or recoveries that the Special Servicer has determined, in accordance
with the Servicing Standard, will be ultimately recoverable.
“FNMA”: Federal
National Mortgage Association or any successor.
“Gain-on-Sale
Proceeds”: With respect to any Mortgage Loan, the excess of
(i) Liquidation Proceeds of the Mortgage Loan or related REO Property net
of any related Liquidation Expenses, over (ii) the Purchase Price for such
Mortgage Loan on the date on which such Liquidation Proceeds were
received.
“Gain-on-Sale Reserve
Account”: A segregated custodial account or accounts or
subaccount of the Distribution Account created and maintained by the Paying
Agent pursuant to Section 3.04(e) on behalf of the Trustee in trust
for the Certificateholders, which shall be entitled “[__________], as Trustee,
in trust for the registered holders of Xxxxx Fargo Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
[__________].” Any such account shall be an Eligible Account or a
subaccount of an Eligible Account.
“Grantor Trust
Provisions”: Subpart E of Part I of subchapter J of the Code
and Treasury Regulations Section 301.7701-4(c).
“Ground
Lease”: With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged Property or space
lease within such Mortgaged Property, the lease agreement creating such
leasehold interest.
“Group 1 Mortgage
Loan”: Any Mortgage Loan identified on the Mortgage Loan
Schedule as belonging to Loan Group 1.
“Group 2 Mortgage
Loan”: Any Mortgage Loan identified on the Mortgage Loan
Schedule as belonging to Loan Group 2.
“Hazardous
Materials”: Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including, without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls (“PCBs”), radon gas,
petroleum and petroleum products and urea formaldehyde.
“Holder”: A
Certificateholder.
“HUD-Approved
Servicer”: A servicer approved by the Secretary of Housing and
Urban Development pursuant to Section 207 of the National Housing
Act.
“Impound
Reserve”: As defined in
Section 3.16(c) hereof.
“Independent”: When
used with respect to any specified Person, any such Person who (i) is in
fact independent of the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, the Controlling Class Representative, the
Trustee, any Companion Holder and any and all Affiliates thereof, (ii) does
not have any direct financial interest in or any
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material
indirect financial interest in any of the Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer, the Controlling Class Representative,
the Trustee, any Companion Holder or any Affiliate thereof, and (iii) is
not connected with the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Controlling Class Representative, the Special Servicer, the
Trustee, any Companion Holder or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided,
however, that a Person
shall not fail to be Independent of the Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Controlling Class Representative, the Special Servicer,
the Trustee or any Affiliate thereof merely because such Person is the
beneficial owner of 1% or less of any class of securities issued by the
Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special Servicer,
the Controlling Class Representative, the Trustee or any Affiliate thereof, as
the case may be.
“Independent
Appraiser”: An Independent professional real estate appraiser
who is a member in good standing of the Appraisal Institute, and, if the State
in which the subject Mortgaged Property is located certifies or licenses
appraisers, certified or licensed in such State, and in each such case, who has
a minimum of five years experience in the subject property type and
market.
“Initial
Purchaser”: Each of [__________] and [__________] or, in each
case, its successor in interest.
“Independent
Contractor”: Any Person that would be an “independent
contractor” with respect to REMIC I within the meaning of
Section 856(d)(3) of the Code if REMIC I were a real estate investment
trust (except that the ownership test set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35 percent
or more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be delivered,
at no expense to the Master Servicer, the Special Servicer, the Trustee or the
Trust Fund, to the Trustee and the Master Servicer, so long as REMIC I does
not receive or derive any income from such Person and provided that the
relationship between such Person and REMIC I is at arm’s length, all within
the meaning of Treasury Regulations Section 1.856-4(b)(5)), or any other
Person upon receipt by the Trustee of an Opinion of Counsel, which shall be at
no expense to the Master Servicer, the Special Servicer, the Trustee or the
Trust Fund, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code, or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
“Institutional Accredited
Investor”: Institutional “accredited investors” as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act or any
entity in which all the equity holders fall within any such
subsections.
“Insurance
Policy”: With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
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“Insurance
Proceeds”: Proceeds paid under any Insurance Policy, to the
extent such proceeds are not applied to the restoration of the related Mortgaged
Property, released to the Mortgagor, or any tenants or ground lessors, as the
case may be, pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
“Insured Environmental
Event”: As defined in Section 3.08(c).
“Intercreditor
Agreement”: [___________].
“Interest Accrual
Period”: With respect to each Class of Regular Certificates or
the REMIC I Regular Interests and any Distribution Date, the calendar month
immediately preceding the calendar month in which such Distribution Date
occurs. Notwithstanding the foregoing, each Interest Accrual Period
is deemed to consist of 30 days for purposes of calculating interest on the
Regular Certificates or the REMIC I Regular Interests.
“Interest Reserve
Account”: The segregated account created and maintained by the
Trustee pursuant to Section 3.04(c) in trust for Certificateholders,
which shall be entitled “[__________], as Trustee, on behalf of and in trust for
the registered holders of Xxxxx Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates,
Series [__________]”.
“Interest Reserve
Amount”: With respect to each Interest Reserve Loan and each
Distribution Date that occurs in February of each year and in January of each
year that is not a leap year, an amount equal to one day’s interest at the
related Mortgage Rate (without regard to the second proviso in the definition
thereof) on the related Stated Principal Balance as of the Due Date in the month
in which such Distribution Date occurs (but prior to the application of any
amounts owed on such Due Date), to the extent a Periodic Payment or P&I
Advance is made in respect thereof for such Due Date as of the related P&I
Advance Date.
“Interest Reserve
Loan”: Each Mortgage Loan that is an Actual/360 Mortgage
Loan.
“Interested
Person”: The Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Independent Contractor hired by the Special
Servicer, any Holder of a Certificate, each Companion Holder (but only with
respect to the related Co-Lender Loan) or any Affiliate of any such
Person.
“Internet
Website”: The Internet Websites maintained by the Trustee and,
if applicable, the Master Servicer initially located at “www.[_________].com”
and “www.[_________].com”, respectively, or such other address as provided to
the parties hereto from time to time.
“Investment
Account”: As defined in Section 3.06(a).
“Issue
Price”: With respect to each Class of Certificates, the “issue
price” as defined in the Code and Treasury regulations promulgated
thereunder.
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“Late
Collections”: With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon during any Collection Period, other than
Penalty Interest, whether as payments, Insurance Proceeds, Liquidation Proceeds
or otherwise, which represent late collections of the principal and/or interest
portions of a Scheduled Payment (other than a Balloon Payment) or an Assumed
Scheduled Payment in respect of such Mortgage Loan or Companion Loan due or
deemed due on a Due Date in a previous Collection Period, and not previously
recovered. With respect to any REO Loan, all amounts received in
connection with the related property during any Collection Period, whether as
Insurance Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of the principal and/or interest portions of a
Scheduled Payment (other than a Balloon Payment) or an Assumed Scheduled Payment
in respect of the predecessor Mortgage Loan or of an Assumed Scheduled Payment
in respect of such REO Loan deemed due on a Due Date in a previous Collection
Period and not previously recovered.
“Liquidation
Event”: With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full;
(ii) a Final Recovery Determination is made with respect to such Mortgage
Loan; (iii) such Mortgage Loan is repurchased by a Mortgage Loan Seller
pursuant to the applicable Mortgage Loan Purchase Agreement; or (iv) such
Mortgage Loan is purchased by the Majority Subordinate Certificateholder, the
Companion Holders, the mezzanine lenders or the Special Servicer pursuant to
Sections 3.18(c), 3.18(d), 3.18(e) or 3.18(m), or by the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder pursuant to
Section 9.01. With respect to any REO Property (and the related
REO Loan), any of the following events: (i) a Final Recovery
Determination is made with respect to such REO Property; (ii) such REO
Property is purchased by the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder pursuant to Section 9.01; or
(iii) such REO Property is purchased by the Companion Holder as described
in Section 3.18(d).
“Liquidation
Fee”: With respect to each Mortgage Loan and REO Loan, the fee
payable to the Special Servicer out of certain related recoveries pursuant to
the third paragraph of Section 3.11(c).
“Liquidation Fee
Rate”: With respect to all amounts set forth in the third
paragraph of Section 3.11(c), [___]%.
“Liquidation
Proceeds”: All cash amounts (other than Insurance Proceeds and
REO Revenues) received by the Master Servicer or the Special Servicer in
connection with: (i) the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the rights of the Mortgagor under the terms of the
related Mortgage; (ii) the liquidation of a Mortgaged Property or other
collateral constituting security for a Defaulted Mortgage Loan, through
trustee’s sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Mortgagor in accordance
with applicable law and the terms and conditions of the related Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment obtained
against a Mortgagor; (iv) the purchase of a Defaulted Mortgage Loan by the
Majority Subordinate Certificateholder, the related Companion Holder, the
mezzanine lenders or the Special Servicer pursuant to Section 3.18(c),
Section 3.18(d), Section 3.18(e) or Section 3.18(m); (v) the
repurchase of a
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Mortgage
Loan by a Mortgage Loan Seller pursuant to the applicable Mortgage Loan Purchase
Agreement; (vi) the purchase of a Mortgage Loan or REO Property by the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder pursuant to Section 9.01; (vii) the purchase of an
REO Property by the Companion Holder pursuant to Section 3.18(d); or
(viii) the remittance by the applicable Mortgage Loan Seller of amounts
specified in Section 2.03(g).
“Loan
Group”: Either Loan Group 1 or Loan Group 2.
“Loan Group
1”: Collectively, all of the Mortgage Loans that are Group 1
Mortgage Loans and any successor REO Loans with respect thereto.
“Loan Group 1 Available
Distribution Amount”: With respect to any Distribution Date,
that portion, if any, of the Available Distribution Amount attributable to Loan
Group 1.
“Loan Group 1 Principal
Distribution Amount”: With respect to any Distribution Date,
that portion, if any, of the Principal Distribution Amount attributable to Loan
Group 1.
“Loan Group
2”: Collectively, all of the Mortgage Loans that are Group 2
Mortgage Loans and any successor REO Loans with respect thereto.
“Loan Group 2 Available
Distribution Amount”: With respect to any Distribution Date,
that portion, if any, of the Available Distribution Amount attributable to Loan
Group 2.
“Loan Group 2 Principal
Distribution Amount”: With respect to any Distribution Date,
that portion, if any, of the Principal Distribution Amount attributable to Loan
Group 2.
“Loan
Pair”: Collectively, any Co-Lender Loan and its related
Companion Loan(s).
“Loan-to-Value
Ratio”: With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the then current principal amount of such Mortgage Loan, and the denominator of
which is the Appraised Value of the related Mortgaged Property.
“Lockout
Period”: With respect to any Mortgage Note that prohibits the
Mortgagor from prepaying such Mortgage Loan until a date specified in such
Mortgage Note, the period from the Closing Date until such specified
date.
“Majority Subordinate
Certificateholder”: As of any date of determination, any
single Holder of Certificates (other than any Holder which is an Affiliate of
the Depositor or the Mortgage Loan Seller) entitled to greater than 50% of the
Voting Rights allocated to the Controlling Class; provided, however, that, if there is no
single Holder of Certificates entitled to greater than 50% of the Voting Rights
allocated to such Class, then the Majority Subordinate Certificateholder shall
be the single Holder of Certificates with the largest percentage of Voting
Rights allocated to such Class. With respect to determining the
Majority Subordinate Certificateholder, the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class A-PB
Certificates, the Class A-4 Certificates, the Class A-5 Certificates and
the Class A-1A Certificates shall be deemed to be a single Class of
Certificates, with such
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Voting
Rights allocated among the Holders of Certificates of such Classes in proportion
to the respective Certificate Principal Balances of such Certificates as of such
date of determination.
“Master
Servicer”: [__________], its successor in interest (including
the Trustee as successor pursuant to Section 7.02), or any successor master
servicer appointed as herein provided.
“Master Servicing
Fee”: With respect to each Mortgage Loan and REO Loan the fee
payable to the Master Servicer pursuant to Section 3.11(a).
“Master Servicing Fee
Rate”: With respect to each Mortgage Loan the percentage set
forth under the column “Master Servicing Fee Rate” on the Mortgage Loan
Schedule.
“Material Core
Documents”: As defined in Section 2.03.
“Memorandum”: As
defined in the Mortgage Loan Purchase Agreement.
“Money
Term”: With respect to any Mortgage Loan, the maturity date,
Mortgage Rate, Stated Principal Balance, amortization term or payment frequency
thereof or any provision thereof requiring the payment of a Prepayment Premium
or Yield Maintenance Charge in connection with a Principal Prepayment (but not
any late fees or default interest provisions).
[“Moody’s”: Xxxxx’x
Investors Service, Inc., or its successor in interest. If Moody’s nor
any successor remains in existence, “Moody’s” shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer and the Special Servicer, and specific ratings of
Moody’s herein referenced shall be deemed to refer to the equivalent ratings of
the party so designated.]
“Mortgage”: With
respect to any Mortgage Loan, the mortgage, deed of trust, deed to secure debt
or similar instrument that secures the Mortgage Note and creates a lien on the
fee or leasehold interest in the related Mortgaged Property.
“Mortgage Deferred
Interest”: With respect to any Mortgage Loan as to which the
Mortgage Rate has been reduced through a modification and any Distribution Date,
the amount by which (a) interest accrued at such reduced rate is less than
(b) the amount of interest that would have accrued on such Mortgage Loan at
the Mortgage Rate before such reduction, to the extent such amount has been
added to the outstanding principal balance of such Mortgage Loan.
“Mortgage
File”: With respect to any Mortgage Loan, collectively the
following documents:
(i) the
original executed Mortgage Note including any power of attorney related to the
execution thereof, together with any and all intervening endorsements thereon,
endorsed on its face or by allonge attached thereto (without recourse,
representation or warranty, express or implied) to the order of “[__________],
as trustee for the registered holders of Xxxxx Fargo Commercial
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Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series [__________]”, or
in blank (or a lost note affidavit and indemnity with a copy of such Mortgage
Note attached thereto);
(ii) an
original or copy of the Mortgage, together with any and all intervening
assignments thereof, in each case (unless not yet returned by the applicable
recording office) with evidence of recording indicated thereon or certified by
the applicable recording office;
(iii) an
original or copy of any related Assignment of Leases (if such item is a document
separate from the Mortgage), together with any and all intervening assignments
thereof, in each case (unless not yet returned by the applicable recording
office) with evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an
original executed assignment, in recordable form (except for any missing
recording information), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the Mortgage and
to the extent not already assigned pursuant to preceding clause (a)) and
(c) any other recorded document relating to the Mortgage Loan otherwise
included in the Mortgage File, in favor of “[__________], as trustee for the
registered holders of Xxxxx Fargo Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series [__________]”, 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 “[__________], as trustee for the registered holders of Xxxxx Fargo
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
[__________]”, or in blank;
(vi) originals
or copies of any modification, consolidation, assumption and substitution
agreements in those instances where the terms or provisions of the Mortgage or
Mortgage Note have been consolidated or modified or the Mortgage Loan has been
assumed or consolidated;
(vii) the
original or a copy of the policy or certificate of lender’s title insurance or,
if such policy has not been issued or located, an original or copy of an
irrevocable, binding commitment (which may be a marked version of the policy
that has been executed by an authorized representative of the title company, a
“pro forma” title policy, or an agreement to provide the same pursuant to
binding escrow instructions executed by an authorized representative of the
title company) to issue such title insurance policy;
(viii) any filed
copies (bearing evidence of filing) or other evidence of filing satisfactory to
the Trustee of any prior UCC Financing Statements in favor of the originator of
such Mortgage Loan or in favor of any assignee prior to the Trustee (but only to
the extent the Mortgage Loan Seller had possession of such
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UCC
Financing Statements prior to the Closing Date) and, if there is an effective
UCC Financing Statement and continuation statement in favor of the Mortgage Loan
Seller on record with the applicable public office for UCC Financing Statements,
an original UCC Amendment, in form suitable for filing in favor of
“[__________], as trustee for the registered holders of Xxxxx Fargo Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
[__________], as assignee”, or in blank;
(ix) an
original or copy of (A) any Ground Lease, Memorandum of Ground Lease and ground
lessor estoppel, and (B) any loan guaranty or indemnity and (C) any
environmental insurance policy;
(x) any
intercreditor agreement relating to permitted debt (including, without
limitation, mezzanine debt) of the Mortgagor;
(xi) copies of
any loan agreement, escrow agreement or security agreement relating to such
Mortgage Loan;
(xii) a copy of
any letter of credit and related transfer documents relating to such Mortgage
Loan;
(xiii) copies of
any management agreements and applicable transfer or assignment
documents;
(xiv) copies of
any cash management agreements and applicable transfer or assignment
documents;
(xv) copies of
franchise agreements and franchisor comfort letters, if any, for hospitality
properties and applicable transfer or assignment documents; and
(xvi) with
respect to any Companion Loan, all of the above documents with respect to such
Companion Loan and the related Intercreditor Agreement; provided that a copy of each
Mortgage Note relating to such Companion Loan, rather than the original, shall
be provided, and no assignments shall be provided;
provided that, whenever the
term “Mortgage
File” is used to refer to documents actually received by the Trustee or
by a Custodian on its behalf, such term shall not be deemed to include such
documents required to be included therein unless they are actually so received,
and with respect to any receipt or certification by the Trustee or the Custodian
for documents described in clauses (vi) and (ix) (solely with respect
to any guaranty) of this definition, shall be deemed to include only such
documents to the extent the Trustee or Custodian has actual knowledge of their
existence.
Notwithstanding
the foregoing, with respect to the [__________] Loan, the “Mortgage File” will
consist of the original note (or lost note affidavit, if applicable) specified
in clause (i) above, and a photocopy of each additional document in the
Mortgage File held by the [__________] Trustee.
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“Mortgage
Loan”: Each of the mortgage loans transferred and assigned to
the Trust Fund pursuant to Section 2.01 and listed on the Mortgage Loan
Schedule and from time to time held in the Trust Fund. As used
herein, the term “Mortgage Loan”
includes the related Mortgage Note, Mortgage, and other security documents
contained in the related Mortgage File. Unless otherwise indicated,
as used in this Agreement, the term “Mortgage Loan” does
not include any Companion Loan.
“Mortgage Loan Purchase
Agreement”: Each of the [__________] Mortgage Loan Purchase
Agreement and the [__________] Mortgage Loan Purchase Agreement, individually or
collectively, as the context may require.
“Mortgage Loan
Schedule”: The list of Mortgage Loans transferred on the
Closing Date to the Trustee as part of REMIC I, attached hereto as Exhibit
B and in a computer readable format. Such list shall set forth the
following information with respect to each Mortgage Loan:
(i) the
Mortgage Loan number;
(ii) the
street address (including city, county, state and zip code) and name of the
related Mortgaged Property;
(iii) the
Cut-Off Date Balance;
(iv) the
amount of the Periodic Payment due on the first Due Date following the Closing
Date;
(v) the
original Mortgage Rate;
(vi) the (A)
original term to stated maturity, (B) remaining term to stated maturity and (C)
the Stated Maturity Date and, in the case of an ARD Loan, the Anticipated
Repayment Date;
(vii) in the
case of a Balloon Mortgage Loan, the remaining amortization term;
(viii) the
original and remaining amortization term;
(ix) whether
the Mortgage Loan is secured by a Ground Lease;
(x) the
Master Servicing Fee Rate;
(xi) whether
such Mortgage Loan is an ARD Loan and if so the Anticipated Repayment Date and
Additional Interest Rate for such ARD Loan;
(xii) the
related Mortgage Loan Seller;
(xiii) whether
such Mortgage Loan is insured by an environmental policy;
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(xiv) whether
such Mortgage Loan is cross-defaulted or cross-collateralized with any other
Mortgage Loan;
(xv) whether
such Mortgage Loan is a Defeasance Loan;
(xvi) whether
the Mortgage Loan is secured by a letter of credit;
(xvii) whether
such Mortgage Loan is an Interest Reserve Loan;
(xviii) whether
payments on such Mortgage Loan are made to a lock-box;
(xix) the
amount of any Reserve Funds escrowed in respect of each Mortgage
Loan;
(xx) the
number of units or square feet related to the Mortgaged Property;
(xxi) the
number of grace days after the Due Date until Periodic Payments incur late
payment charges; and
(xxii) the
applicable Loan Group to which such Mortgage Loan belongs.
“Mortgage Loan
Seller”: Each of [_________] and [__________], or their
respective successors in interest, individually or collectively as the context
may require.
“Mortgage
Note”: The original executed note evidencing the indebtedness
of a Mortgagor under a Mortgage Loan or Companion Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
“Mortgage
Pool”: Collectively, all of the Mortgage Loans and any
successor REO Loans.
“Mortgage
Rate”: With respect to (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the fixed annualized rate, not including any
Additional Interest Rate, at which interest is scheduled (in the absence of a
default) to accrue on such Mortgage Loan from time to time in accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage Loan after
its Stated Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Stated Maturity Date, but
giving effect to any modification thereof as contemplated by Section 3.20;
and (iii) any REO Loan, the annualized rate described in clause (i) or
(ii), as applicable, above determined as if the predecessor Mortgage Loan had
remained outstanding; provided, however, that if any Mortgage
Loan does not accrue interest on the basis of a 360-day year consisting of
twelve 30-day months, then, solely for purposes of calculating the Pass-Through
Rates, the Mortgage Rate of such Mortgage Loan for any one-month period
preceding a related Due Date will be the annualized rate at which interest would
have to accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Penalty Interest or Additional Interest)
in respect of such Mortgage Loan during such one-month period at the related
Mortgage Rate; provided, however, that, solely for the
purposes of calculating the Pass-Through Rates, with respect to each Interest
Reserve Loan, the
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Mortgage
Rate for the one-month period (A) preceding the Due Dates that occur in January
and February in any year which is not a leap year or preceding the Due Date that
occurs in February in any year which is a leap year will be determined exclusive
of the Interest Reserve Amounts for such months (in each case unless such Due
Date occurs in a January or February in which the final Distribution Date
occurs), and (B) preceding the Due Date in March, and in the event the final
Distribution Date occurs in February or, if such year is not a leap year, in
January, preceding the Due Date in such February or January, will be determined
inclusive of the Interest Reserve Amounts for the immediately preceding February
and, if applicable, January; provided, further, that, if the
Mortgage Rate of the related Mortgage Loan has been modified in connection with
a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20, solely for purposes of calculating the
Pass-Through Rate, the Mortgage Rate for such Mortgage Loan shall be calculated
without regard to such event.
“Mortgaged
Property”: The property subject to the lien of a
Mortgage.
“Mortgagor”: The
obligor or obligors on a Mortgage Note, including without limitation, any Person
that has acquired the related Mortgaged Property and assumed the obligations of
the original obligor under the Mortgage Note and/or, in the case of an indemnity
deed of trust, the entity which granted the lien on such Mortgaged
Property.
“Net Aggregate Prepayment
Interest Shortfall”: With respect to any Distribution Date,
the amount, if any, by which (a) the aggregate of all Prepayment Interest
Shortfalls incurred in connection with the receipt of Principal Prepayments on
the Mortgage Loans during the related Collection Period, exceeds (b) the
aggregate amount deposited by the Master Servicer in the Certificate Account for
such Distribution Date pursuant to Section 3.19(a) in connection with
such Prepayment Interest Shortfalls on the Mortgage Loans. For
purposes of calculating the Prepayment Interest Shortfall with respect to the
[__________] Loan, Prepayment Interest Shortfalls will be allocated in
accordance with the [__________] Pooling and Servicing Agreement. The
portion of such shortfall allocated to the [__________] Loan, net of amounts
payable by the [__________] Master Servicer, will be included in the Net
Aggregate Prepayment Interest Shortfall. For purposes of calculating
the Prepayment Interest Shortfall with respect to the [__________] Loan, such
Prepayment Interest Shortfall will be calculated with respect to each of, and
allocated pro rata among, the promissory notes related to the [__________] Loan
and the [__________] Companion Loan. The portion of such shortfall
allocated to the [__________] Loan, net of amounts payable by the Master
Servicer, will be included in the Net Aggregate Prepayment Interest
Shortfall. For purposes of calculating the Prepayment Interest
Shortfall with respect to the Co-Lender Loans (other than the [__________] Loan
and the [__________] Loan), Prepayment Interest Shortfalls will be allocated
first to the promissory note evidencing the related Subordinate Companion Loan,
if any, and second to the promissory note evidencing the related Co-Lender
Loan. The portion of such shortfall allocated to the Co-Lender Loans,
net of amounts payable by the Master Servicer, will be included in the Net
Aggregate Prepayment Interest Shortfall.
“Net Investment
Earnings”: With respect to (i) the Certificate Account,
any Servicing Account, any Special Reserve Account, any Reserve Account or the
REO Account (if any) for any Collection Period and (ii) the Distribution
Account, the Interest Reserve Account,
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the
Additional Interest Account and the Companion Distribution Account (if any) for
the related Distribution Date, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period with respect to
the accounts described in clause (i) above and as of such related
Distribution Date with respect to the accounts described in clause
(ii) above on funds held in such accounts, exceeds the aggregate of all
losses, if any, incurred during such Collection Period with respect to the
accounts described in clause (i) above and as of such related Distribution
Date with respect to the accounts described in clause (ii) above in
connection with the investment of such funds in accordance with
Section 3.06.
“Net Investment
Loss”: With respect to (i) the Certificate Account, any
Servicing Account, any Special Reserve Account, any Reserve Account or the REO
Account (if any) for any Collection Period and (ii) the Distribution
Account, the Interest Reserve Account, the Additional Interest Account and the
Companion Distribution Account (if any) for the related Distribution Date, the
amount by which the aggregate of all losses, if any, incurred during such
Collection Period with respect to the accounts described in clause
(i) above and as of such related Distribution Date with respect to the
accounts described in clause (ii) above in connection with the investment
of funds held in such accounts in accordance with Section 3.06, exceeds the
aggregate of all interest and other income realized during such Collection
Period with respect to the accounts described in clause (i) above and as of
such related Distribution Date with respect to the accounts described in clause
(ii) above on such funds.
“Net Mortgage
Rate”: With respect to any Mortgage Loan or any REO Loan, as
of any date of determination, a rate per annum equal to the
related Mortgage Rate minus the sum of the Trustee Fee Rate and the applicable
Master Servicing Fee Rate.
“Net Operating Income” or
“NOI”: As defined in and determined in accordance with the
provisions of Exhibit E attached hereto.
“New
Lease”: Any lease of REO Property entered into at the
direction of the Special Servicer on behalf of REMIC I, including any lease
renewed, modified or extended on behalf of such REMIC if such REMIC has the
right to renegotiate the terms of such lease.
“Nonrecoverable
Advance”: Any Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance; provided that Workout-Delayed
Reimbursement Amounts shall constitute a Nonrecoverable Advance only when the
Person making such determination in accordance with the procedures specified in
the definition of Nonrecoverable P&I Advance or Nonrecoverable Servicing
Advance, as applicable, and taking into account factors such as all other
outstanding Advances, either (a) has determined in accordance with the
Servicing Standard or the standards applicable to the Trustee as set forth in
the definitions of “Nonrecoverable P&I Advance” and “Nonrecoverable
Servicing Advance” that such Workout-Delayed Reimbursement Amounts would not
ultimately be recoverable from Late Collections, Insurance Proceeds or
Liquidation Proceeds, or any other recovery on or in respect of the related
Mortgage Loan or REO Loan or (b) has determined in accordance with the
Servicing Standard or such other applicable standard that such Workout-Delayed
Reimbursement Amounts, along with any other Workout-Delayed Reimbursement
Amounts and Nonrecoverable Advances, would not ultimately be recoverable from
the portion of Late Collections, Insurance Proceeds or Liquidation Proceeds in
respect of the pool of the Mortgage Loans or REO Loans allocable to
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principal,
or any other recovery on or in respect of the pool of Mortgage Loans or REO
Loans allocable to principal.
“Nonrecoverable P&I
Advance”: Any P&I Advance previously made or proposed to
be made in respect of any Mortgage Loan, the [__________] Companion Loan or any
REO Loan by the Master Servicer or the Trustee, as the case may be, or, in the
case of the [__________] Serviced Mortgage Loan, previously made or proposed to
be made by the [__________] Master Servicer, the Master Servicer or the Trustee,
as applicable, that, as determined by the Master Servicer, the Special Servicer,
the Trustee or the [__________] Master Servicer, as applicable, in accordance
with the Servicing Standard (in the case of the Master Servicer or the Special
Servicer), the “Servicing Standard” as defined in the [__________] Pooling and
Servicing Agreement (in the case of the [__________] Master Servicer) or the
standard of care set forth in Section 8.01(a) (with respect to the
Trustee), as applicable, with respect to such P&I Advance will not be
ultimately recoverable from Late Collections, Insurance Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan,
[__________] Companion Loan, REO Loan or [__________] Serviced Mortgage Loan;
provided that the
Master Servicer will be permitted to conclusively rely upon any such
nonrecoverability determination made by the Special Servicer and, with respect
to the [__________] Loan only, the [__________] Master Servicer.
“Nonrecoverable Servicing
Advance”: Any Servicing Advance previously made or proposed to
be made in respect of a Mortgage Loan, REO Loan or Companion Loan by the Master
Servicer, the Special Servicer or the Trustee, as the case may be, or, in the
case of the [__________] Serviced Mortgage Loan, made by the [__________] Master
Servicer, that, as determined by the Master Servicer, the Special Servicer, the
Trustee or the [__________] Master Servicer, as applicable, in accordance with
the Servicing Standard (in the case of the Master Servicer or the Special
Servicer), the “Servicing Standard” as defined in the [__________] Pooling and
Servicing Agreement (in the case of the [__________] Master Servicer) or the
standard of care set forth in Section 8.01(a) (with respect to the
Trustee), as applicable, will not be ultimately recoverable from Late
Collections, Insurance Proceeds, Liquidation Proceeds, or any other recovery on
or in respect of such Mortgage Loan, Companion Loan, REO Property or the
[__________] Serviced Mortgage Loan, as applicable; provided that the Master
Servicer will be permitted to conclusively rely upon any such nonrecoverability
determination made by the Special Servicer.
“Non-Registered
Certificate”: Unless and until registered under the Securities
Act, Class X-C, Class X-P, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O,
Class P, Class Q, Class S, Class Z, Class R-I or Class R-II
Certificate.
“Non-United States
Person”: Any Person other than a United States
Person.
“Officer’s
Certificate”: A certificate signed by a Servicing Officer of
the Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee.
“Opinion of
Counsel”: A written opinion of counsel (which counsel may be a
salaried counsel for the Depositor, the Master Servicer or the Special Servicer)
acceptable to and delivered to the Trustee or the Master Servicer, as the case
may be, except that any opinion of
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counsel
relating to (a) the qualification of REMIC I or REMIC II as a
REMIC; (b) the qualification of the Additional Interest Grantor Trust as a
grantor trust; (c) compliance with the REMIC Provisions or the Grantor
Trust Provisions or (d) the resignation of the Master Servicer or the
Special Servicer pursuant to Section 6.04 must be an opinion of counsel who
is in fact Independent of the Master Servicer, the Special Servicer or the
Depositor, as applicable.
“Option
Price”: As defined in Section 3.18(c).
“Original Class Principal
Balance”: With respect to any Class of Sequential Pay
Certificates, the Original Class Principal Balance thereof as of the Closing
Date, in each case as specified in the Preliminary Statement.
“Original Class X-C
Notional Amount”: $[__________].
“Original Class X-P
Notional Amount”: $[_________].
“Original Notional
Amount”: The Original Class X-C Notional Amount or the
Original Class X-P Notional Amount, as the context requires.
“OTS”: The
Office of Thrift Supervision or any successor thereto.
“Ownership
Interest”: As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
“P&I
Advance”: As to any Mortgage Loan or REO Loan, any advance
made by the Master Servicer or the Trustee pursuant to Section 4.03(a) and
(b) as applicable.
“P&I Advance
Date”: The Business Day immediately preceding each
Distribution Date.
“Pari Passu Companion
Loan”: Each of the [__________] Companion Loan and the
[__________] Companion Loan.
“Pari Passu Mortgage
Loan”: Each of the [__________] Loan and the [__________]
Loan.
“Pass-Through
Rate”: With respect to:
(i) the
Class A-1 Certificates for any Distribution Date, [______]% per annum;
(ii) the
Class A-2 Certificates for any Distribution Date, [______]% per annum;
(iii) the Class
A-3 Certificates for any Distribution Date, [______]% per annum;
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(iv) the
Class A-PB Certificates for any Distribution Date, [______]% per annum;
(v) the Class
A-4 Certificates for any Distribution Date, the lesser of (1) [___]% per annum and (2) the
Weighted Average Net Mortgage Rate for such date;
(vi) the Class
A-5 Certificates for any Distribution Date, the lesser of (1) [___]% per annum
and (2) the Weighted Average Net Mortgage Rate for such date;
(vii) the Class
A-1A Certificates for any Distribution Date, the lesser of (1) [___]% per annum and (2) the
Weighted Average Net Mortgage Rate for such date;
(viii) the Class
A-M Certificates for any Distribution Date, the lesser of (1) [___]% per annum and (2) the
Weighted Average Net Mortgage Rate for such date;
(ix) the
Class A-J Certificates for any Distribution Date, the lesser of
(1) [___]% per
annum and (2) the Weighted Average Net Mortgage Rate for such
date;
(x) the
Class B Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date minus [____]%;
(xi) the
Class C Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date minus [____]%;
(xii) the
Class D Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date minus [____]%;
(xiii) the
Class E Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date
minus [____]%;
(xiv) the
Class F Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date;
(xv) the
Class G Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date;
(xvi) the
Class H Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date;
(xvii) the
Class J Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date;
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(xviii) the
Class K Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date;
(xix) the
Class L Certificates for any Distribution Date, the lesser of
(1) [___]% per
annum and (2) the Weighted Average Net Mortgage Rate for such
date;
(xx) the
Class M Certificates for any Distribution Date, the lesser of
(1) [___]% per
annum and (2) the Weighted Average Net Mortgage Rate for such
date;
(xxi) the
Class N Certificates for any Distribution Date, the lesser of
(1) [___]% per
annum and (2) the Weighted Average Net Mortgage Rate for such
date;
(xxii) the
Class O Certificates for any Distribution Date, the lesser of
(1) [___]% per
annum and (2) the Weighted Average Net Mortgage Rate for such
date;
(xxiii) the
Class P Certificates for any Distribution Date, the lesser of
(1) [___]% per
annum and (2) the Weighted Average Net Mortgage Rate for such
date;
(xxiv) the Class
Q Certificates for any Distribution Date, the lesser of (1) [___]% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(xxv) the Class
S Certificates for any Distribution Date, the lesser of (1) [____]% per annum and (2) the
Weighted Average Net Mortgage Rate for such date;
(xxvi) the
Class X-C Certificates (1) for the initial Distribution Date, [___]% per annum, and (2) for any
subsequent Distribution Date, the weighted average of the Class X-C Strip
Rates for the respective Class X-C Components for such Distribution Date; provided, however, that the
Pass-Through Rate applicable to the Class X-C Certificates, in no circumstance
shall be less than zero;
(xxvii) the
Class X-P Certificates for the initial Distribution Date, [___]% per annum, and for any
subsequent Distribution Date, the weighted average of the Class X-P Strip
Rates for the respective Class X-P Components for such Distribution Date
(weighted on the basis of the respective Component Notional Amounts of such
Components outstanding immediately prior to such Distribution
Date).
“Paying
Agent”: The paying agent appointed pursuant to
Section 8.16. If no such paying agent has been appointed or if
such paying agent has been so appointed but the Trustee has terminated such
appointment, then the Trustee shall be the Paying Agent.
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“Penalty
Interest”: With respect to any Mortgage Loan or Companion Loan
(or successor REO Loan), any amounts collected thereon, other than late payment
charges, Additional Interest, Prepayment Premiums or Yield Maintenance Charges,
that represent penalty interest (arising out of a default) in excess of interest
on the Stated Principal Balance of such Mortgage Loan or Companion Loan (or
successor REO Loan) accrued at the related Mortgage Rate.
“Percentage
Interest”: With respect to any Regular Certificate, the
portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which is
the Original Class Principal Balance or Original Notional Amount, as the case
may be, of the relevant Class. With respect to a Residual Certificate
or Class Z Certificate, the percentage interest in distributions to be made
with respect to the relevant Class, as stated on the face of such
Certificate.
“Periodic
Payment”: With respect to any Mortgage Loan or Companion Loan
as of any Due Date, the scheduled payment of principal and/or interest on such
Mortgage Loan or Companion Loan (exclusive of Additional Interest), including
any Balloon Payment, that is actually payable by the related Mortgagor from time
to time under the terms of the related Mortgage Note (as such terms may be
changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to
Section 3.20).
“Permitted
Investments”: Any one or more of the following obligations or
securities (including obligations or securities of the Trustee if otherwise
qualifying hereunder):
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof (having original maturities of not more than 365 days); provided such obligations are
backed by the full faith and credit of the United States. Such
obligations must be limited to those instruments that have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or change or be
liquidated prior to maturity. Interest may either be fixed or
variable. If such interest is variable, interest must be
tied to a single interest rate index plus a single fixed spread
(if any), and move proportionately with that index;
(ii) repurchase
obligations with respect to any security described in clause (i) above
(having original maturities of not more than 365 days); provided that the short-term
deposit or debt obligations, of the party agreeing to repurchase such
obligations are rated in the highest rating categories of each of S&P and
Xxxxx’x or such lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies. In addition, its terms must have a
predetermined fixed dollar amount of principal due at maturity that cannot vary
or change. Interest may either be fixed or variable. If
such interest is variable, interest must be tied to
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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 Xxxxx’x or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies. In addition, its terms
should have a predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. In addition, its terms must have a
predetermined fixed dollar amount of principal due at maturity that cannot vary
or change. Interest may either be fixed or variable. If
such interest is variable, interest must be tied to a single interest rate index
plus a single fixed
spread (if any), and move proportionately with that index;
(iv) commercial
paper (having original maturities of not more than 365 days) of any
corporation incorporated under the laws of the United States or any state
thereof (or if not so incorporated, the commercial paper is United States Dollar
denominated and amounts payable thereunder are not subject to any withholding
imposed by any non-United States jurisdiction) which is rated in the highest
rating category of each of S&P and Xxxxx’x or such lower rating as will not
result in qualification, downgrading or withdrawal of the ratings then assigned
to the Certificates, as evidenced in writing by the Rating
Agencies. The commercial paper by its terms must have a predetermined
fixed dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such
interest is variable, interest must be tied to a single interest rate index
plus a single fixed
spread (if any), and move proportionately with that index;
(v) units of
money market funds that maintain a constant asset value and which are rated in
the highest applicable rating category by Xxxxx’x and which are rated “AAAm” or
“AAAm G” by S&P (or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies) and which seeks to maintain a
constant net asset value. In addition, its terms must have a
predetermined fixed dollar amount of principal due at maturity that cannot vary
or change; and
(vi) any other
obligation or security that constitutes a “cash flow investment”
within the meaning of Section 860G(a)(6) of the Code and is acceptable to
each Rating Agency, evidence of which acceptability shall be provided in writing
by each Rating Agency to the Master Servicer, the Special Servicer and the
Trustee; provided,
however, in no event
shall such other obligation or security be rated less than “AA/A-1” or “Aa3/P+” by S&P or
Xxxxx’x, respectively;
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provided that (1) no
investment described hereunder shall evidence either the right to receive
(x) only interest with respect to such investment or (y) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and (2) no investment described hereunder may be purchased at a
price greater than par if such investment may be prepaid or called at a price
less than its purchase price prior to stated maturity.
“Permitted
Transferee”: Any Transferee of a Residual Certificate other
than a Disqualified Organization, a Plan, a Disqualified Non-United States
Person, a partnership any partner of which, directly or indirectly, is a
Disqualified Non-United States Person or a United States Person with respect to
whom income on the Residual Certificate is allocable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such Person or any other United States Person.
“Person”: Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Plan”: As
defined in Section 5.02(c).
“Plurality Residual
Certificateholder”: As to any taxable year of
(i) REMIC I or (ii) REMIC II, the Holder of Certificates
holding the largest Percentage Interest of the related Class of Residual
Certificates.
“Preliminary
Memorandum”: As defined in the Mortgage Loan Purchase
Agreement.
“Preliminary Prospectus
Supplement”: As defined in the Mortgage Loan Purchase
Agreement.
“Prepayment
Assumption”: For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus), except that it is assumed that each ARD Loan is repaid on its
Anticipated Repayment Date.
“Prepayment Interest
Excess”: With respect to any Mortgage Loan that was subject to
a Principal Prepayment in full or in part during any Collection Period, which
Principal Prepayment was applied to such Mortgage Loan following such Mortgage
Loan’s Due Date in such Collection Period, the amount of interest (net of the
related Master Servicing Fee and, if applicable, the Additional Interest)
accrued on the amount of such Principal Prepayment during the period from and
after such Due Date and ending on the date such Principal Prepayment was applied
to such Mortgage Loan, to the extent collected (exclusive of any related
Prepayment Premium or Yield Maintenance Charge actually collected).
“Prepayment Interest
Shortfall”: With respect to any Mortgage Loan that was subject
to a Principal Prepayment in full or in part during any Collection Period, which
Principal Prepayment was applied to such Mortgage Loan prior to such Mortgage
Loan’s Due Date in such Collection Period, the amount of interest, to the extent
not collected from the related Mortgagor (without regard to any Prepayment
Premium or Yield Maintenance Charge actually collected),
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that
would have accrued at a rate per annum equal to the sum of
(x) the related Net Mortgage Rate for such Mortgage Loan and (y) the
Trustee Fee Rate on the amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment was applied to such
Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive.
“Prepayment
Premium”: Any premium, penalty or fee (other than a Yield
Maintenance Charge) paid or payable, as the context requires, by a Mortgagor in
connection with a Principal Prepayment.
“Primary
Collateral”: With respect to any Crossed Loan, that portion of
the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
“Prime
Rate”: The “prime rate” published
in the “Money
Rates” section of The Wall Street Journal, as such “prime rate” may
change from time to time. If The Wall Street Journal
ceases to publish the “prime rate,” then the
Master Servicer shall select an equivalent publication that publishes such
“prime rate”;
and if such “prime
rate” is no longer generally published or is limited, regulated or
administered by a governmental or quasi-governmental body, then the Master
Servicer shall select a comparable interest rate index. In either
case, such selection shall be made by the Master Servicer in its sole discretion
and the Master Servicer shall notify the Trustee and the Special Servicer in
writing of its selection.
“Principal Distribution
Amount”: With respect to any Distribution Date, the aggregate
of the following:
(a) the
aggregate of the principal portions of all Scheduled Payments (other than
Balloon Payments) and any Assumed Scheduled Payments due or deemed due in
respect of the Mortgage Loans for their respective Due Dates occurring during
the related Collection Period, to the extent not previously received or advanced
with respect to a Distribution Date prior to the related Collection
Period;
(b) the
aggregate of all Principal Prepayments received on the Mortgage Loans during the
related Collection Period;
(c) with
respect to any Mortgage Loan as to which the related Stated Maturity Date
occurred during or prior to the related Collection Period, any payment of
principal (other than a Principal Prepayment) made by or on behalf of the
related Mortgagor during the related Collection Period (including any Balloon
Payment), in each case net of any portion of such payment that represents a
recovery of the principal portion of any Scheduled Payment (other than a Balloon
Payment) due, or the principal portion of any Assumed Scheduled Payment deemed
due, in respect of such Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered;
(d) the
aggregate of the principal portion of all Liquidation Proceeds, Insurance
Proceeds and, to the extent not otherwise included in clause (a), (b) or
(c) above, payments that were received on the related Mortgage Loans during
the related
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Collection
Period and that were identified and applied by the Master Servicer and/or
Special Servicer as recoveries of principal of such Mortgage Loans, in each case
net of any portion of such amounts that represents a recovery of the principal
portion of any Scheduled Payment (other than a Balloon Payment) due, or of the
principal portion of any Assumed Scheduled Payment deemed due, in respect of the
related Mortgage Loan on a Due Date during or prior to the related Collection
Period and not previously recovered;
(e) with
respect to any REO Properties, the aggregate of the principal portions of all
Assumed Scheduled Payments deemed due in respect of the related REO Loans for
their respective Due Dates occurring during the related Collection
Period;
(f) with
respect to any REO Properties, the aggregate of all Liquidation Proceeds,
Insurance Proceeds and REO Revenues that were received during the related
Collection Period on such REO Properties and that were identified and applied by
the Master Servicer and/or Special Servicer as recoveries of principal of the
related REO Loans, in each case net of any portion of such amounts that
represents a recovery of the principal portion of any Scheduled Payment (other
than a Balloon Payment) due, or of the principal portion of any Assumed
Scheduled Payment deemed due, in respect of the related REO Loan or the
predecessor Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered;
(g) if such
Distribution Date is subsequent to the initial Distribution Date, the excess, if
any, of the Principal Distribution Amount for the immediately preceding
Distribution Date, over the aggregate distributions of principal made on the
Sequential Pay Certificates on such immediately preceding Distribution Date
pursuant to Section 4.01;
(h) any
amounts that were used to reimburse Nonrecoverable Advances (including interest
on such Nonrecoverable Advances) from principal collections on the Mortgage
Loans pursuant to Section 3.05(a) hereof which are subsequently
recovered on the related Mortgage Loan with respect to the Distribution Date
related to the period in which such recovery occurs;
(i) any
amounts that were used to reimburse Workout-Delayed Reimbursement Amounts
(including interest on such Workout-Delayed Reimbursement Amounts) from
principal collections on the Mortgage Loans pursuant to
Section 3.05(a) hereof which are subsequently recovered on the related
Mortgage Loan with respect to the Distribution Date related to the period in
which such recovery occurs, less;
(j) the
amount of any reimbursements of (i) Nonrecoverable Advances (including
interest on such Nonrecoverable Advances) that are paid or reimbursed from
principal collections on the Mortgage Loans pursuant to
Section 3.05(a) hereof with respect to such Distribution Date and
(ii) Workout-Delayed Reimbursement Amounts (including interest on such
Workout-Delayed Reimbursement Amounts) that are paid or reimbursed from
principal collections on the Mortgage Loans pursuant to
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Section 3.05(a) hereof
with respect to such Distribution Date, in each case where such principal
collections would have otherwise been included in the Principal Distribution
Amount for such Distribution Date.
“Principal
Prepayment”: Any payment of principal made by the Mortgagor on
a Mortgage Loan or Companion Loan that is received in advance of its scheduled
Due Date; provided that
it shall not include a payment of principal that is accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
“Privileged
Person”: Any Certificateholder, Certificate Owner, any Person
identified to the Trustee or the Master Servicer, as applicable, as a
prospective transferee of a Certificate or interest therein, any Rating Agency,
any Mortgage Loan Seller, any Companion Holders, any party hereto, any
Underwriter or any designee of the Depositor; provided that no Certificate
Owner or prospective transferee of a Certificate or interest therein shall be
considered a “Privileged Person” or
be entitled to a password or restricted access as contemplated by
Section 3.15 or Section 4.02 unless such Person has delivered to the
Trustee or the Master Servicer, as applicable, a certification in the form of
Exhibit K-1 or Exhibit K-2, as applicable which certification is available on
the Trustee’s Internet Website.
“Proposed
Plan”: As defined in Section 3.17(a)(iii).
“Prospectus”: The
prospectus dated [__________], as supplemented by the Prospectus Supplement,
relating to the Registered Certificates.
“Prospectus
Supplement”: The final prospectus supplement dated
[__________] of the Depositor relating to the registration of the Registered
Certificates under the Securities Act.
“PTE
95-60”: As defined in Section 5.02(c).
“Purchase
Option”: As defined in Section 3.18(c).
“Purchase Option
Notice”: As defined in Section 3.18(e).
“Purchase
Price”: With respect to any Mortgage Loan or REO Loan
purchased by the Mortgage Loan Seller pursuant to the applicable Mortgage Loan
Purchase Agreement, by the Majority Subordinate Certificateholder, the Companion
Holder or the Special Servicer as described in Section 3.18(c),
3.18(d) or 3.18(e), or by the Depositor, the Special Servicer, the Majority
Subordinate Certificateholder or the Master Servicer pursuant to
Section 9.01, a cash price equal to the outstanding principal balance of
such Mortgage Loan or REO Loan, as of the date of purchase, together with
(a) all accrued and unpaid interest on such Mortgage Loan or REO Loan at
the related Mortgage Rate to but not including the Due Date in the Collection
Period of purchase plus any accrued
interest on P&I Advances made with respect to such Mortgage Loan,
(b) all related and unreimbursed Servicing Advances plus any accrued and
unpaid interest thereon, (c) any reasonable costs and expenses, including,
but not limited to, the cost of any enforcement action, incurred by the Master
Servicer, the Special Servicer or the Trust Fund in connection with any such
purchase by a Mortgage Loan Seller (to the extent not
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included
in clause (b) above) and (d) any other Additional Trust Fund Expenses
in respect of such Mortgage Loan (including any Additional Trust Fund Expenses
previously reimbursed or paid by the Trust Fund but not so reimbursed by the
related Mortgagor or other party or from Insurance Proceeds or condemnation
proceeds or any other collections in respect of the Mortgage Loan or the related
Mortgaged Property from a source other than the Trust Fund), or in the case of
any Loan Pair, the purchase price specified in the related Intercreditor
Agreement; provided
that the Purchase Price shall not be reduced by any outstanding P&I
Advance.
“Qualified
Bidder”: As defined in Section 7.01(c).
“Qualified Institutional
Buyer”: A qualified institutional buyer within the meaning of
Rule 144A under the Securities Act.
“Qualified
Insurer”: An insurance company or security or bonding company
qualified to write the related Insurance Policy in the relevant jurisdiction
(i) with a minimum insurance financial strength or claims paying ability
rating of at least [“A3” by Xxxxx’x], and
[“A” by
S&P] (or the obligations of which are guaranteed or backed by a company
having such a claims paying ability), and (ii) with respect to the fidelity
bond and errors and omissions Insurance Policy required to be maintained
pursuant to Section 3.07(c), an insurance company that has a claims paying
ability rated no lower than two rating categories (without regard to pluses or
minuses or numerical qualifications) below the rating assigned to the then
highest rated outstanding Certificate, but in no event lower than [“A” by
S&P] and [“A3” by Xxxxx’x (or,
if not rated by Xxxxx’x, then at least “A” by two other
nationally recognized statistical rating organizations (which may include
S&P)]), or, in the case of clauses (i) and (ii), such other rating as
each Rating Agency shall have confirmed in writing will not cause such Rating
Agency to downgrade, qualify or withdraw the then-current rating assigned to any
of the Certificates that are then currently being rated by such Rating
Agency .
“Qualified Substitute
Mortgage Loan”: A mortgage loan which must, on the date of
substitution: (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and interest due during
or prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less
than the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same
Due Date as the deleted Mortgage Loan; (iv) accrue interest on the same
basis as the deleted Mortgage Loan (for example, on the basis of a 360-day year
consisting of twelve 30-day months); (v) have a remaining term to stated
maturity not greater than, and not more than two years less than, the remaining
term to stated maturity of the deleted Mortgage Loan; (vi) have an original
Loan-to-Value Ratio not higher than that of the deleted Mortgage Loan and a
current Loan-to-Value Ratio not higher than the then current Loan-to-Value Ratio
of the deleted Mortgage Loan; (vii) comply as of the date of substitution
with all of the representations and warranties set forth in the applicable
Mortgage Loan Purchase Agreement; (viii) have an Environmental Assessment
that indicates no adverse environmental conditions with respect to the related
Mortgaged Property and which will be delivered as a part of the related
Servicing File; (ix) have an original Debt Service Coverage Ratio
(calculated to include the additional debt from any encumbrance) of not less
than the original Debt Service Coverage Ratio (calculated to include the
additional debt from any encumbrance) of the deleted Mortgage Loan and a current
Debt Service Coverage
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Ratio
(calculated to include the additional debt from any encumbrance) of not less
than the current Debt Service Coverage Ratio (calculated to include the
additional debt from any encumbrance) of the deleted Mortgage Loan; (x) be
determined by an Opinion of Counsel (at the applicable Mortgage Loan Seller’s
expense) to be a “qualified replacement
mortgage” within the meaning of Section 860G(a)(4) of the Code;
(xi) not have a maturity date after the date two years prior to the Rated
Final Distribution Date; (xii) not be substituted for a deleted Mortgage
Loan unless the Trustee has received prior confirmation in writing by each
Rating Agency that such substitution will not result in the withdrawal,
downgrade, or qualification of the rating assigned by the Rating Agency to any
Class of Certificates then rated by the Rating Agency (the cost, if any, of
obtaining such confirmation to be paid by the Mortgage Loan Seller); (xiii) have
a date of origination that is not more than 12 months prior to the date of
substitution; (xiv) have been approved by the Controlling Class Representative
(or, if there is no Controlling Class Representative then serving, by the
Holders of Certificates representing a majority of the Voting Rights allocated
to the Controlling Class); (xv) not be substituted for a deleted Mortgage Loan
if it would result in the termination of the REMIC status of REMIC I
or REMIC II or the imposition of tax on either of such REMICs other than a
tax on income expressly permitted or contemplated to be received by the terms of
this Agreement, as determined by an Opinion of Counsel (at the applicable
Mortgage Loan Seller’s expense); and (xvi) become a part of the same Loan Group
as the deleted Mortgage Loan. In the event that one or more mortgage
loans are substituted for one or more deleted Mortgage Loans, then the amounts
described in clause (i) shall be determined on the basis of aggregate
principal balances and the rates described in clause (ii) above and the
remaining term to stated maturity referred to in clause (v) above shall be
determined on a weighted average basis; provided that no individual
Mortgage Loan shall have a Net Mortgage Rate that is less than the highest
Pass-Through Rate of any Class of Sequential Pay Certificates bearing a fixed
rate. When a Qualified Substitute Mortgage Loan is substituted for a
deleted Mortgage Loan, the applicable Mortgage Loan Seller shall certify that
the Mortgage Loan meets all of the requirements of the above definition and
shall send such certification to the Trustee. No substitutions will
be permitted for the [__________] Loan.
“Rated Final Distribution
Date”: The Distribution Date in [_________], the first
Distribution Date after the 24th month following the end of the amortization
term for the Mortgage Loan that, as of the Cut-Off Date, has the longest
remaining amortization term (without regard to the related Stated Maturity
Date).
“Rating
Agency”: Each of [__________][,] [and] [__________][,] [and]
[__________] .
“Realized
Loss”: With respect to: (1) each Defaulted Mortgage
Loan as to which a Final Recovery Determination has been made, or with respect
to any successor REO Loan as to which a Final Recovery Determination has been
made as to the related REO Property, an amount (not less than zero) equal to
(a) the unpaid principal balance of such Mortgage Loan or REO Loan, as the
case may be, as of the commencement of the Collection Period in which the Final
Recovery Determination was made, plus (b) without taking
into account the amount described in subclause (1)(d) of this definition,
all accrued but unpaid interest on such Mortgage Loan or such REO Loan, as the
case may be, at the related Mortgage Rate to but not including the Due Date in
the Collection Period in which the Final Recovery Determination was made
(exclusive of any portion thereof that constitutes default interest in excess of
the Mortgage Rate, Additional
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Interest,
Prepayment Premiums or Yield Maintenance Charges), plus (c) any related
unreimbursed Servicing Advances and any unreimbursed interest on any Advances as
of the commencement of the Collection Period in which the Final Recovery
Determination was made, together with any new related Servicing Advances made
during such Collection Period, minus (d) all payments
and proceeds, if any, received in respect of such Mortgage Loan or the REO
Property that relates to such REO Loan, as the case may be, during the
Collection Period in which such Final Recovery Determination was made; (2) each
defaulted Mortgage Loan as to which any portion of the principal or previously
accrued interest (other than Additional Interest and Penalty Interest) payable
thereunder was canceled in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to
Section 3.20, the amount of such principal and/or interest so canceled; (3)
each Mortgage Loan as to which the Mortgage Rate thereon has been permanently
reduced and not recaptured for any period in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20, the amount of the consequent reduction in the
interest portion of each successive Periodic Payment due thereon (each such
Realized Loss shall be deemed to have been incurred on the Due Date for each
affected Periodic Payment); and (4) each Mortgage Loan for which a Final
Recovery Determination has been made, to the extent not included in clause (1)
above, Nonrecoverable Advances (including interest on such Nonrecoverable
Advance) to the extent amounts have been paid from the Principal Distribution
Amount pursuant to Section 3.05(a) hereof.
“Record
Date”: With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
“Registered
Certificate”: Any Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E or
Class F Certificate.
“Regular
Certificate”: Any REMIC II Certificate other than a
Class R-II Certificate.
“Regulation
AB”: Subpart 229.1100 – Asset Backed Securities (Regulation
AB), 17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (January 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
“Regulation AB Companion Loan
Securitization”: As defined in Section
3.30(a).
“Reimbursement
Rate”: The rate per annum applicable to the
accrual of interest on Servicing Advances in accordance with Section 3.03(d) and
on P&I Advances in accordance with Section 4.03(d), which rate per annum is equal to the
Prime Rate.
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“Relevant Servicing
Criteria”: The Servicing Criteria applicable to the various
parties, as set forth on Exhibit S attached
hereto. For clarification purposes, multiple parties can have
responsibility for the same Relevant Servicing Criteria. With respect
to a Servicing Participant engaged by the Trustee, the Master Servicer or the
Special Servicer, the term “Relevant Servicing Criteria” may refer to a portion
of the Relevant Servicing Criteria applicable to the Master Servicer, the
Special Servicer or the Trustee.
“REMIC”: A
“real estate mortgage
investment conduit” as defined in Section 860D of the
Code.
“REMIC Administrator”: The
Trustee or any REMIC administrator appointed pursuant to
Section 8.14.
“REMIC I”: The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder with respect to which a separate
REMIC election is to be made and, consisting of: (i) all of
the Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of such Mortgage Loans received after the Closing
Date (excluding all Additional Interest on such Mortgage Loans), together with
all documents included in the related Mortgage Files and any related Escrow
Payments and Reserve Funds; (ii) all amounts held from time to time with
respect to a Mortgage Loan in the Interest Reserve Account, the Certificate
Account, the Distribution Account, the Gain-on-Sale Reserve Account and any REO
Account; (iii) any REO Property acquired in respect of a Mortgage Loan (or
the Trust Fund’s beneficial interest in the Mortgaged Property securing the
[__________] Loan acquired under the [__________] Pooling and Servicing
Agreement); (iv) the rights of the Depositor under Sections 2, 3, 9, 10,
11, 12, 13, 14, 16, 17, 18 and 19 of each of the Mortgage Loan Purchase
Agreements with respect to such Mortgage Loans; and (v) the rights of the
mortgagee under all Insurance Policies with respect to such Mortgage Loans, in
each of the foregoing clauses exclusive of the interest of the holder of a
Companion Loan therein.
“REMIC I Pass-Through
Rate”: As set forth in the Preliminary Statement.
“REMIC I Principal
Balance”: The principal balance of any REMIC I Regular
Interest outstanding as of any date of determination. As of the
Closing Date, the REMIC I Principal Balance of each REMIC I Regular
Interest shall equal the original REMIC I Principal Balance as set forth in
the Preliminary Statement hereto. On each Distribution Date, the
REMIC I Principal Balance of each REMIC I Regular Interest shall be
permanently reduced by all distributions of principal deemed to have been made
in respect of such REMIC I Regular Interest on such Distribution Date
pursuant to Section 4.01(h), and shall be further permanently reduced on
such Distribution Date by all Realized Losses and Additional Trust Fund Expenses
deemed to have been allocated thereto on such Distribution Date pursuant to
Section 4.04(b) and shall be increased on such Distribution Date by
Certificate Deferred Interest deemed to have been allocated thereto on such
Distribution Date pursuant to Section 4.04(c).
“REMIC I Regular
Interest”: Any of the separate uncertificated beneficial
ownership interests in REMIC I issued hereunder, and designated as a “regular interest” in
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REMIC I,
held as an asset of REMIC II and having the original REMIC I Principal
Balance and REMIC I Pass-Through Rate as described in the Preliminary
Statement hereto.
“REMIC II”: The
segregated pool of assets consisting of all of the REMIC I Regular
Interests and all amounts held from time to time, to the extent related to
REMIC II, in the Distribution Account, conveyed in trust to the Trustee for
the benefit of REMIC II, as holder of the REMIC I Regular Interests,
and the Holders of the Class R-II Certificates pursuant to
Section 2.10, with respect to which a separate REMIC election is to be
made.
“REMIC II
Certificate”: Any Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q,
Class S, Class X-C, Class X-P or Class R-II
Certificate.
“REMIC
Provisions”: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and proposed, temporary and final Treasury regulations and any published
rulings, notices and announcements promulgated thereunder, as the foregoing may
be in effect from time to time.
“Rents from Real
Property”: With respect to any REO Property, gross income of
the character described in Section 856(d) of the Code.
“REO
Account”: A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of
the Trustee in trust for the Certificateholders, which shall be entitled
“[__________], as Special Servicer, in trust for the registered holders of Xxxxx
Fargo Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series [__________].”
“REO
Acquisition”: The acquisition of any REO Property by the Trust
Fund pursuant to Section 3.09.
“REO
Disposition”: The sale or other disposition of any REO
Property pursuant to Section 3.18(h).
“REO
Extension”: As defined in Section 3.16(a).
“REO
Loan”: The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property (or, with respect to the
[__________] Loan, the Trust Fund’s proportionate beneficial interest in the
Mortgaged Property acquired by the [__________] Trustee pursuant to the
[__________] Pooling and Servicing Agreement). Each REO Loan shall be
deemed to be outstanding for so long as the related REO Property remains part of
REMIC I and deemed to provide for Periodic Payments of principal and/or
interest equal to its Assumed Scheduled Payment and otherwise to have the same
terms and conditions as its predecessor Mortgage Loan (such terms and conditions
to be applied without regard to the default on such predecessor Mortgage Loan
and the acquisition of the related REO Property as part of the Trust
Fund). Each REO Loan shall be deemed to have an initial unpaid
principal balance and Stated Principal Balance equal to the unpaid principal
balance and Stated Principal Balance,
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respectively,
of its predecessor Mortgage Loan (or, if applicable, Companion Loan) as of the
date of the related REO Acquisition. All Scheduled Payments (other
than a Balloon Payment), Assumed Scheduled Payments (in the case of a Balloon
Mortgage Loan delinquent in respect of its Balloon Payment) and other amounts
due and owing, or deemed to be due and owing, in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition, shall be deemed to
continue to be due and owing in respect of an REO Loan. In addition,
Nonrecoverable Advances and Unliquidated Advances (including interest on such
Nonrecoverable Advances and Unliquidated Advances) with respect to such REO Loan
that were paid from collections on the Mortgage Loans and resulted in principal
distributed to the Certificateholders being reduced pursuant to
Section 3.05(a) hereof, shall be deemed outstanding until recovered or
until a Final Recovery Determination is made. Collections in respect
of each REO Loan (after provision for amounts to be applied to the payment of,
or to be reimbursed to the Master Servicer, the Special Servicer or the Trustee
for the payment of, the costs of operating, managing, selling, leasing and
maintaining the related REO Property or for the reimbursement of the Master
Servicer, the Special Servicer or the Trustee for Advances as provided in this
Agreement) shall be treated: first, as a recovery of
Nonrecoverable Advances and Unliquidated Advances (including interest on such
Nonrecoverable Advances or Unliquidated Advances) with respect to such REO Loan,
in each case that relate to Advances that were paid from collections on the
Mortgage Loans and resulted in principal distributed to the Certificateholders
being reduced pursuant to Section 3.05(a) hereof; second, as a recovery of
accrued and unpaid interest on such REO Loan at the related Mortgage Rate to but
not including the Due Date in the Collection Period of receipt (exclusive of any
portion thereof that constitutes Additional Interest); third, as a recovery of
principal of such REO Loan to the extent of its entire unpaid principal balance;
and fourth, in
accordance with the normal servicing practices of the Master Servicer, as a
recovery of any other amounts due and owing in respect of such REO Loan,
including, without limitation, (i) Yield Maintenance Charges, Prepayment
Premiums and Penalty Interest and (ii) Additional Interest and other
amounts, in that order. Notwithstanding the foregoing, all amounts
payable or reimbursable to the Master Servicer, the Special Servicer or the
Trustee in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid Servicing
Fees and any unreimbursed Servicing Advances and P&I Advances, together with
any interest accrued and payable to the Master Servicer, the Special Servicer or
the Trustee in respect of such Servicing Advances and P&I Advances in
accordance with Sections 3.03(d) and 4.03(d), shall continue to be payable
or reimbursable to the Master Servicer, the Special Servicer or the Trustee, as
the case may be, in respect of an REO Loan pursuant to
Section 3.05(a).
“REO
Property”: A Mortgaged Property acquired on behalf and in the
name of the Trustee (or, in the case of the [__________] Loan, the Trust Fund’s
proportionate beneficial interest in the Mortgaged Property acquired by the
[__________] Trustee pursuant to the [__________] Pooling and Servicing
Agreement) for the benefit of the Certificateholders (subject to the related
Intercreditor Agreement with respect to a Mortgaged Property securing a Loan
Pair) through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in accordance with applicable law in connection with the default or
imminent default of a Mortgage Loan.
“REO
Revenues”: All income, rents, profits and proceeds derived
from the ownership, operation or leasing of any REO Property.
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“REO
Tax”: As defined in Section 3.17(a)(i).
“Reportable
Event”: As defined in Section 8.17(j).
“Reporting
Party”: The Master Servicer, the Special Servicer, the
Trustee, an Additional Servicer or a Servicing Participant.
“Request for
Release”: A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
“Required
Appraisal”: With respect to each Required Appraisal Mortgage
Loan, an appraisal of the related Mortgaged Property from an Independent
Appraiser selected by the Special Servicer.
“Required Appraisal
Date”: With respect to any Required Appraisal Mortgage Loan,
the earliest date on which any of the items specified in clauses
(i) through (vi) of the first paragraph of the definition of Required
Appraisal Mortgage Loan occurs.
“Required Appraisal Mortgage
Loan”: Each Mortgage Loan (i) that is sixty (60) days or
more delinquent in respect of any Periodic Payments, (ii) that becomes an
REO Loan), (iii) that has been modified by the Special Servicer to reduce
the amount of any Periodic Payment (other than a Balloon Payment),
(iv) with respect to which a receiver is appointed and continues in such
capacity in respect of the related Mortgaged Property, (v) with respect to
which a Mortgagor declares bankruptcy or with respect to which the related
Mortgagor is subject to a bankruptcy proceeding, (vi) with respect to which
any Balloon Payment on such Mortgage Loan has not been paid by its scheduled
maturity date, unless the Master Servicer has, on or prior to 60 days following
the Stated Maturity Date, received written evidence from an institutional lender
of such lender’s binding commitment to refinance such Mortgage Loan within 120
days after the Due Date of such Balloon Payment (provided that if such
refinancing does not occur during such time specified in the commitment, the
related Mortgage Loan will immediately become a Required Appraisal Mortgage
Loan) or (vii) that is outstanding 60 days after the third anniversary of
an extension of its Stated Maturity Date; provided, however, that a Required
Appraisal Mortgage Loan will cease to be a Required Appraisal Mortgage
Loan:
(a) with
respect to the circumstances described in clauses (i) and (iii) above,
when the related Mortgagor has made three consecutive full and timely Periodic
Payments under the terms of such Mortgage Loan (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
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circumstances
described in clause (vi) above, no later than the date that the Special
Servicer agrees to an extension pursuant to Section 3.20
hereof;
so long
as at that time no circumstance identified in clauses (i) through
(vi) above exists that would cause the Mortgage Loan to continue to be
characterized as a Required Appraisal Mortgage Loan.
“Required Appraisal
Value”: An amount equal to 90% of the Appraised Value (net of
any prior liens and estimated liquidation expenses and any other downward
adjustments the Special Servicer may deem appropriate (without implying any
obligation to do so) based upon its review of the Appraisal and such other
information as the Special Servicer may deem appropriate) of the Mortgaged
Property related to the subject Required Appraisal Mortgage Loan as determined
by a Required Appraisal or letter update or internal valuation, if applicable;
provided that for
purposes of determining any Appraisal Reduction Amount in respect of such
Required Appraisal Mortgage Loan, such Appraisal Reduction Amount shall be
amended annually to reflect the Required Appraisal Value determined pursuant to
any Required Appraisal or letter update or internal valuation, if applicable, of
a Required Appraisal conducted subsequent to the original Required Appraisal
performed pursuant to Section 3.09(a).
“Reserve
Account”: The account or accounts created and maintained
pursuant to Section 3.03(f).
“Reserve
Funds”: With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for environmental remediation, repairs, capital
improvements, tenant improvements and/or leasing commissions with respect to the
related Mortgaged Property.
“Residual
Certificate”: A Class R-I Certificate or Class R-II
Certificate.
“Responsible
Officer”: When used with respect to (i) the initial
Trustee, any officer or assistant officer in the Corporate Trust Office of the
initial Trustee, and (ii) any successor trustee, any officer or assistant
officer in the corporate trust department of the successor trustee, or any other
officer or assistant officer of the successor trustee customarily performing
functions similar to those performed by any of the above designated officers to
whom a particular matter is referred by the successor trustee because of such
officer’s knowledge of and familiarity with the particular subject.
“Restricted Servicer
Reports”: Each of the CMSA Servicer Watchlist, CMSA Operating
Statement Analysis, CMSA NOI Adjustment Worksheet and CMSA Comparative Financial
Status Report. If a Restricted Servicer Report is filed with the
Commission, it shall thereafter be an Unrestricted Servicer Report.
[“S&P”: Standard
& Poor’s Ratings Services, a division of The XxXxxx-Xxxx 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
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specific
ratings of S&P herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.]
“Xxxxxxxx-Xxxxx
Act”: The Xxxxxxxx-Xxxxx Act of 2002.
“Xxxxxxxx-Xxxxx
Certification”: A written certification signed by an officer
of the Master Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act of 2002, as
amended from time to time, and (ii) Exchange Act Rules 13a-14(d) and 15d-14(d),
as in effect from time to time.
“Scheduled
Payment”: With respect to any Mortgage Loan, for any Due Date
following the Cut-Off Date as of which it is outstanding, the scheduled Periodic
Payment of principal and interest (other than Additional Interest) on such
Mortgage Loan that is or would be, as the case may be, payable by the related
Mortgagor on such Due Date under the terms of the related Mortgage Note as in
effect on the Closing Date, without regard to any subsequent change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to
Section 3.20 or acceleration of principal by reason of default, and
assuming that each prior Scheduled Payment has been made in a timely
manner.
“Section 302
Requirements”: As defined in Section 8.17(b).
“Securities
Act”: The Securities Act of 1933, as amended.
“Senior
Certificate”: Any Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A or Class X
Certificate.
“Sequential Pay
Certificates”: Any Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q or
Class S Certificate.
“Servicer Fee
Amount”: With respect to each Sub-Servicer and any date of
determination, the aggregate of the products obtained by multiplying, for each
Mortgage Loan serviced by such Sub-Servicer, (a) the Stated Principal
Balance of such Mortgage Loan as of the end of the immediately preceding
Collection Period and (b) the servicing fee rate specified in the related
Sub-Servicing Agreement for such Mortgage Loan. With respect to the
Master Servicer and any date of determination, the aggregate of the products
obtained by multiplying, for each Mortgage Loan (a) the Stated Principal
Balance of such Mortgage Loan as of the end of the immediately preceding
Collection Period and (b) the difference between the Master Servicing Fee
Rate for such Mortgage Loan over the servicing fee rate (if any) applicable to
such Mortgage Loan as specified in any Sub-Servicing Agreement related to such
Mortgage Loan.
“Servicer
Reports”: Any of the Restricted Servicer Reports, the
Unrestricted Servicer Reports, the CMSA Loan Setup File, the CMSA Loan Periodic
Update File, the CMSA Financial File, CMSA Property File, the CMSA Advance
Recovery Report and a report
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reconciling
Penalty Interest and late payment charges collected with interest on Advances
and Additional Trust Fund Expenses.
“Servicing
Account”: The account or accounts created and maintained
pursuant to Section 3.03(a).
“Servicing
Advances”: All customary, reasonable and necessary “out of pocket” costs
and expenses incurred by or on behalf of the Master Servicer, the Special
Servicer or the Trustee in connection with the servicing of a Mortgage Loan or a
Companion Loan (other than the [__________] Serviced Mortgage Loan and its
related Companion Loan), or in connection with the administration of any related
REO Property, including, but not limited to, the cost of (a) compliance
with the obligations of the Master Servicer and the Special Servicer, if any,
set forth in Section 3.02 and Section 3.03(c), (b) the
preservation, insurance, restoration, protection and management of a Mortgaged
Property, including the cost of any “forced placed”
insurance policy purchased by the Master Servicer to the extent such cost is
allocable to a particular Mortgaged Property that the Master Servicer or the
Special Servicer is required to cause to be insured pursuant to
Section 3.07(a), (c) obtaining any Insurance Proceeds or any
Liquidation Proceeds of the nature described in clauses (i) through
(v) of the definition of “Liquidation
Proceeds,” (d) any enforcement or judicial proceedings with respect
to a Mortgaged Property, including, without limitation, foreclosures,
(e) any Required Appraisal or other appraisal expressly required or
permitted to be obtained hereunder, (f) the operation, management,
maintenance and liquidation of any such REO Property, including, without
limitation, appraisals and compliance with Section 3.16(a) (to the
extent not covered by available funds in the REO Account) and
Section 3.20(h) (to the extent not paid by the related Mortgagor) and
(g) compliance with the obligations of the Master Servicer or the Trustee
set forth in Section 2.03(a) or (b). Notwithstanding
anything to the contrary, “Servicing Advances”
shall not include allocable overhead of the Master Servicer or the Special
Servicer, such as costs for office space, office equipment, supplies and related
expenses, employee salaries and related expenses and similar internal costs and
expenses or costs and expenses incurred by any such party in connection with its
purchase of a Mortgage Loan or REO Property, or costs or expenses expressly
required to be borne by the Master Servicer or Special Servicer without
reimbursement pursuant to the terms of this Agreement.
“Servicing
Criteria”: The “servicing criteria” set forth in Item 1122(d)
of Regulation AB.
“Servicing
Fees”: With respect to each Mortgage Loan, Companion Loan and
REO Loan, the Master Servicing Fee and the Special Servicing Fee.
“Servicing
File”: Any documents, certificates, opinions and reports
(other than documents required to be part of the related Mortgage File)
delivered by the related Mortgagor in connection with, or relating to the
origination and servicing of any Mortgage Loan or Companion Loan which are
reasonably required for the ongoing administration of the Mortgage Loan and the
Companion Loan, including management agreements, cash management agreements,
lockbox agreements, franchise agreements, franchise comfort letters (and
evidence of required notification of transfer), appraisals, surveys, engineering
reports, environmental
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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 Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to
time.
“Servicing
Participant”: Any Additional Servicer, Sub-Servicer,
Subcontractor or any other Person, other than the Master Servicer, the Special
Servicer and the Trustee, that is performing activities addressed by the
Servicing Criteria, unless such Person’s activities relate only to 5% or less of
the Mortgage Loans.
“Servicing-Released
Bid”: As defined in Section 7.01(c).
“Servicing-Retained
Bid”: As defined in Section 7.01(c).
“Servicing
Standard”: With respect to the Master Servicer or the Special
Servicer, as applicable, the servicing and administration of the Mortgage Loans
and the Companion Loans for which it is responsible hereunder (a) in the
same manner in which, and with the same care, skill, prudence and diligence with
which the Master Servicer or the Special Servicer, as the case may be, generally
services and administers similar mortgage loans with similar borrowers
(i) for other third-parties, giving due consideration to customary and
usual standards of practice of prudent institutional commercial mortgage lenders
servicing their own loans or (ii) held in its own portfolio, whichever
standard is higher, (b) with a view to the maximization of the recovery on
such Mortgage Loan on a net present value basis and the best interests of the
Certificateholders and the Trust Fund or, if a Loan Pair is involved, with a
view towards the maximization of recovery on such Co-Lender Loan Pair to the
Certificateholders, the related Companion Holders and the Trust Fund (as a
collective whole, taking into account that the Subordinate Companion Loans are
subordinate to the related Co-Lender Loans and the Passu Companion Loans are
pari passu in right of
payment with the related Pari Passu Loan, in each case to the extent set forth
in the related Intercreditor Agreement), and (c) without regard to
(i) any relationship that the Master Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof may have with the related Mortgagor,
the Depositor, any Mortgage Loan Seller or any other party to the transaction or
any Affiliate thereof; (ii) the ownership of any Certificate or Companion
Loan (or other interest in any Mortgage Loan or Companion Loan) by the Master
Servicer or the Special Servicer, as the case may be, or by any Affiliate
thereof; (iii) the right of the Master Servicer or the Special Servicer, as
the case may be, to receive compensation or other fees for its services rendered
pursuant to this Agreement; (iv) the obligations of the Master Servicer to
make Advances; (v) the ownership, servicing or management by the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof
for others of any other mortgage loans or mortgaged property; (vi) any
obligation of the Master Servicer or any Affiliate of the Master Servicer to
repurchase or substitute a Mortgage Loan as a Mortgage Loan Seller;
(vii) any obligation of the Master Servicer or any Affiliate of the Master
Servicer to cure a breach of a representation and warranty with respect to a
Mortgage Loan; and (viii) any debt the
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Master
Servicer or Special Servicer or any Affiliate of either has extended to any
Mortgagor or any Affiliate of such Mortgagor.
“Servicing Transfer
Event”: With respect to any Mortgage Loan, the occurrence of
any of the events described in clauses (a) through (h) of the
definition of “Specially Serviced Mortgage
Loan”.
“Similar
Law”: As defined in Section 5.02(c).
“Single
Certificate”: For purposes of Section 4.02, a
hypothetical Certificate of any Class of Regular Certificates evidencing a
$1,000 denomination.
“Special Reserve
Account”: As used herein, the Trustee may create a segregated
custodial account or accounts pursuant to Section 2.02(d) in trust for
the Certificateholders, which shall be entitled “[__________], as Trustee, in
trust for the registered holders of Xxxxx Fargo Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series [__________] and [name of
party providing the funds]”. Any such account will be an Eligible
Account.
“Special
Servicer”: With respect to each Mortgage Loan, [__________],
or, any successor special servicer appointed as herein provided.
“Special Servicing
Fee”: With respect to each Specially Serviced Mortgage Loan
and each REO Loan, the fee designated as such and payable to the Special
Servicer pursuant to the first paragraph of Section 3.11(c).
“Special Servicing Fee
Rate”: With respect to each Specially Serviced Mortgage Loan
and each REO Loan, [___]% per
annum.
“Specially Serviced Mortgage
Loan”: Any Mortgage Loan or Companion Loan as to which any of
the following events have occurred:
(a) the
related Mortgagor shall have (i) failed to make within 60 days of the date
when due any Balloon Payment; provided, however, that if
the Mortgagor continues to make its Assumed Scheduled Payment and diligently
pursues refinancing, a Servicing Transfer Event shall not occur until 60 days
following such default (or, if the Mortgagor has produced a written refinancing
commitment that is reasonably acceptable to the Special Servicer and the
Controlling Class Representative has given its consent (which consent shall be
deemed denied if not granted within 10 Business Days), 120 days following such
default; provided that
if such refinancing does not occur during the time period specified in such
written refinancing commitment, a Servicing Transfer Event will be deemed to
occur); or (ii) failed to make when due any Periodic Payment (other than a
Balloon Payment), and such failure has continued unremedied for 60 days;
or
(b) the
Master Servicer or Special Servicer (in the case of the Special Servicer, with
the consent of the Controlling Class Representative) shall have determined (with
written notice of any such determination by the Special Servicer to be promptly
given by the Special Servicer to the Master Servicer), in its good faith
reasonable judgment, and in accordance with the Servicing Standard, based on
communications with the related Mortgagor, that a default in making a Periodic
Payment (including a Balloon Payment) or any other default under the applicable
Mortgage Loan documents that would (with respect to such other default)
materially impair the value of the Mortgaged Property as security for the
Mortgage Loan and, if applicable, Companion Loan or otherwise would materially
adversely affect the interests of Certificateholders and would continue
unremedied beyond the applicable grace period under the terms of the Mortgage
Loan (or, if no grace period is specified, for 60 days; provided that a default that
would give rise to an acceleration right without any grace period shall be
deemed to have a grace period equal to zero) is likely to occur and is likely to
remain unremedied for at least 60 days; or
(c) there
shall have occurred a default (other than as described in clause (a) above)
that the Master Servicer or the Special Servicer (in the case of the Special
Servicer, with the consent of the Controlling Class Representative) shall have
determined (with written notice of any such determination by the Special
Servicer to be promptly given by the Special Servicer to the Master Servicer),
in its good faith and reasonable judgment, and in
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accordance
with the Servicing Standard, materially impairs the value of the Mortgaged
Property as security for the Mortgage Loan and, if applicable, Companion Loan,
or otherwise materially adversely affects the interests of Certificateholders
and that continues unremedied beyond the applicable grace period under the terms
of the Mortgage Loan (or, if no grace period is specified, for 60 days;