Exhibit 4.1(a)
GE COMMERCIAL MORTGAGE CORPORATION,
Depositor
[
]
Servicer
[
]
Special Servicer
[
]
Trustee
and
[
]
Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of __________, 200_
$
Commercial Mortgage Pass-Through Certificates
Series 200_-_
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms..................................................4
Section 1.02 Certain
Calculations..........................................51
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage
Loans..................................53
Section 2.02 Acceptance by
Trustee.........................................55
Section 2.03 Representations, Warranties and
Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and
Warranties..........57
Section 2.04 Execution of
Certificates.....................................60
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer;
Special Servicer to Act as
Special Servicer; Administration of the Mortgage
Loans........61
Section 3.02 Collection of Mortgage Loan
Payments..........................63
Section 3.03 Collection of Taxes, Assessments
and Similar Items;
Servicing
Accounts............................................64
Section 3.04 The Certificate Account, the
Lower-Tier and Upper-Tier
Distribution Accounts [and the Excess Interest
Distribution Account] [and the Class A-3FL Floating Rate
Account]......................................................67
Section 3.05 Permitted Withdrawals From the
Certificate Account and
the Distribution
Accounts.....................................71
Section 3.06 Investment of Funds in the
Certificate Account, the
Interest Reserve Account, the Distribution Accounts and
the REO
Account...............................................75
Section 3.07 Maintenance of Insurance Policies;
Errors and Omissions
and Fidelity
Coverage.........................................77
Section 3.08 Enforcement of Due-On-Sale
Clauses; Assumption Agreements.....80
Section 3.09 Realization Upon Defaulted
Mortgage Loans.....................82
Section 3.10 Trustee to Cooperate; Release of
Mortgage Files...............85
Section 3.11 Servicing
Compensation........................................86
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Section 3.12 Inspections; Collection of
Financial Statements...............89
Section 3.13
Reserved......................................................91
Section 3.14
Reserved......................................................91
Section 3.15 Access to Certain
Information.................................91
Section 3.16 Title to REO Property; REO
Account............................92
Section 3.17 Management of REO
Property....................................93
Section 3.18 Sale of REO
Properties........................................96
Section 3.19 Sale of Defaulted Mortgage
Loans..............................97
Section 3.20 Modifications, Waivers, Amendments
and Consents..............100
Section 3.21 Transfer of Servicing Between
Servicer and Special
Servicer; Record Keeping; Asset Status
Report................104
Section 3.22 Sub-Servicing
Agreements.....................................107
Section 3.23 Representations, Warranties and
Covenants of the Servicer....110
Section 3.24 Representations, Warranties and
Covenants of the Special
Servicer.....................................................111
Section 3.25 [Interest Reserve
Account.]..................................113
Section 3.26 [Excess Interest Distribution
Account.]......................113
Section 3.27 [Duties of the Extension
Adviser.]...........................113
Section 3.28 [Extension Adviser;
Elections.]..............................114
Section 3.29 [Limitation on Liability of
Extension Adviser.]..............116
Section 3.30 [Class A-3FL Swap
Contract.].................................116
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01
Distributions................................................119
Section 4.02 Statements to Certificateholders;
CMSA Periodic Update
Reports......................................................128
Section 4.03 P&I
Advances.................................................133
Section 4.04 Allocation of Collateral Support
Deficit.....................135
Section 4.05 Appraisal
Reductions.........................................135
Section 4.06 Certificate Deferred
Interest................................136
ARTICLE V
THE CERTIFICATES
Section 5.01 The
Certificates.............................................137
Section 5.02 Registration of Transfer and
Exchange of Certificates........138
Section 5.03 Book-Entry
Certificates......................................145
Section 5.04 Mutilated, Destroyed, Lost or
Stolen Certificates............147
Section 5.05 Persons Deemed
Owners........................................148
Section 5.06 Appointment of Paying
Agent..................................148
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ARTICLE VI
THE DEPOSITOR, THE
SERVICER AND THE SPECIAL SERVICER
Section 6.01 Liability of the Depositor, the
Servicer and the Special
Servicer.....................................................150
Section 6.02 Merger, Consolidation or
Conversion of the Depositor, the
Servicer or the Special
Servicer.............................150
Section 6.03 Limitation on Liability of the
Depositor, the Servicer,
the Special Servicer and
Others..............................150
Section 6.04 Depositor, Servicer and Special
Servicer Not to Resign.......152
Section 6.05 Rights of the Depositor in Respect
of the Servicer and
the Special
Servicer.........................................153
Section 6.06 [Rating Agency
Fees.]........................................153
Section 6.07 [The Directing
Certificateholder.]...........................153
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and
Special Servicer
Termination..................................................156
Section 7.02 Trustee to Act; Appointment of
Successor.....................159
Section 7.03 Notification to
Certificateholders...........................161
Section 7.04 Waiver of Events of
Default..................................161
Section 7.05 Trustee and Fiscal Agent as Makers
of Advances...............161
ARTICLE VIII
CONCERNING THE TRUSTEE AND FISCAL AGENT
Section 8.01 Duties of
Trustee............................................163
Section 8.02 Certain Matters Affecting the
Trustee........................164
Section 8.03 Trustee and Fiscal Agent Not
Liable for Validity or
Sufficiency of Certificates or Mortgage
Loans................165
Section 8.04 Trustee and Fiscal Agent May Own
Certificates................166
Section 8.05 Fees and Expenses of Trustee;
Indemnification of Trustee
and Fiscal
Agent.............................................166
Section 8.06 Eligibility Requirements for
Trustee.........................167
Section 8.07 Resignation and Removal of the
Trustee and the Fiscal
Agent........................................................167
Section 8.08 Successor Trustee and Fiscal
Agent...........................169
Section 8.09 Merger or Consolidation of Trustee
or Fiscal Agent...........170
Section 8.10 Appointment of Co-Trustee or
Separate Trustee................170
Section 8.11 Appointment of
Custodians....................................171
Section 8.12 Access to Certain
Information................................171
Section 8.13 Representations and Warranties of
the Trustee and the
Fiscal
Agent.................................................174
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ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or
Liquidation of All
Mortgage
Loans...............................................177
Section 9.02 Additional Termination
Requirements..........................179
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC
Administration.........................................181
Section 10.02 Depositor, Special Servicer,
Paying Agent and Trustee to
Cooperate with
Servicer......................................185
Section 10.03 Use of
Agents................................................185
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01
Amendment....................................................186
Section 11.02 Recordation of Agreement;
Counterparts.......................188
Section 11.03 Limitation on Rights of
Certificateholders...................188
Section 11.04 Governing
Law................................................189
Section 11.05
Notices......................................................190
Section 11.06 Severability of
Provisions...................................190
Section 11.07 Grant of a Security
Interest.................................190
Section 11.08 Successors and Assigns;
Beneficiaries........................191
Section 11.09 Article and Section
Headings.................................191
Section 11.10 Notices to the Rating
Agencies...............................191
ARTICLE XII
EXCHANGE ACT REPORTING
Section 12.01 Filing
Obligations...........................................193
Section 12.02 Form 10-D
Filings............................................193
Section 12.03 Form 10-K
Filings............................................193
Section 12.04 Sarbanes-Oxley
Certification.................................194
Section 12.05 Form 8-K
Filings.............................................195
Section 12.06 Form 15
Filing...............................................195
Section 12.07 Annual Compliance
Statements.................................195
Section 12.08 Annual Reports on Assessment
of Compliance with Servicing
Criteria.....................................................196
Section 12.09 Annual Independent Public
Accountants' Servicing Report......196
Section 12.10 Exchange Act Reporting
Indemnification.......................197
Section 12.11
Amendments...................................................198
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EXHIBITS
Exhibit A-1 Form
of Class [A-1] Certificate
Exhibit A-2 Form
of Class [A-2] Certificate
Exhibit A-3 Form
of Class [B] Certificate
Exhibit A-4 Form
of Class [C] Certificate
Exhibit A-5 Form
of Class [D] Certificate
Exhibit A-6 Form
of Class [E] Certificate
Exhibit A-7 Form
of Class [F] Certificate
Exhibit A-8 Form
of Class [G] Certificate
Exhibit A-9 Form
of Class [H] Certificate
Exhibit A-10 Form of
Class [X] Certificate
Exhibit A-11 Form of
Class [R] Certificate
Exhibit A-12 Form of
Class [LR] Certificate
Exhibit A-13 Form of
Class [A-1A] Certificate
[Exhibit A-14 Form of Class
A-3FL Certificate]
Exhibit B
Mortgage Loan Schedule
Exhibit C
Form of Investment Representation Letter
Exhibit D-1 Form
of Transfer Affidavit
Exhibit D-2 Form
of Transferor Letter
Exhibit E
[Intentionally Omitted]
Exhibit F
Form of Request for Release
Exhibit G
Form of ERISA Representation Letter
Exhibit H
Form of Distribution Date Statement
SCHEDULES
Schedule 1
Computerized Database Information
Schedule 2
Borrower Concentrations in Excess of 5%
Schedule 3
Mortgage Loans Containing Affiliate Debt
Schedule 4
Mortgage Loans Which Initially Pay Interest Only
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This Pooling and Servicing Agreement (the "Agreement"),
is dated
and effective as of ________ 200_, among GE
Commercial Mortgage
Corporation,
as Depositor, __________, as Servicer, ________, as Special Servicer,
________as Fiscal Agent and __________as
Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial 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 the
trust fund (the "Trust Fund") to be
created hereunder, the primary assets of
which will be a pool of commercial and
multifamily mortgage loans (the "Mortgage
Loans"). As provided herein, the
Servicer shall elect or shall cause an
election to be made to treat the Trust
Fund [(exclusive of the Excess Interest and
the Excess Interest Distribution
Account [and the portion of the Trust Fund
consisting of the Class A-3FL Regular
Interest, the Class A-3FL Swap Contract,
the Class A-3FL Floating Rate Account
and the proceeds thereof])] for federal
income tax purposes as two separate real
estate mortgage investment conduits (the
"Upper-Tier REMIC" and the "Lower-Tier
REMIC," and each, a "REMIC").
[The portion of the Trust Fund consisting of the Class A-3FL
Regular
Interest, the Class A-3FL Swap Contract,
the Class A-3FL Floating Rate Account
and the proceeds thereof shall be treated
as another grantor trust (the "Class
A-3FL Grantor Trust") for federal income
tax purposes. The Class A-3FL
Certificates will represent undivided
beneficial interests in the Class A-3FL
Grantor Trust. As provided herein, the
Trustee shall take all actions necessary
to ensure that the portions of the Trust
Fund consisting of the Grantor Trusts
will maintain their respective status as a
"grantor trust" under federal income
tax law and will not be treated as part of
either the Upper-Tier REMIC or
Lower-Tier REMIC.]
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The following table sets forth the designation, the
pass-through
rate (the "Pass-Through Rate"), the
aggregate initial principal amount (the
"Original Certificate Balance") or Notional
Amount ("Original Notional Amount"),
as applicable, and the initial ratings
given each Class by the Rating Agencies
(the "Original Ratings") for each Class of
Certificates comprising the interests
in the Upper-Tier REMIC created
hereunder:
UPPER-TIER REMIC
Original
Class
Original
Rating
Designation
Pass-Through Rate Certificate Balance
___
/___(1)
-----------
----------------- -------------------
-----------
Class [A-1]
Class [A-1A]
Class [A-2]
[Class A-3FL] [LIBOR + [___]%]
Class [B]
Class [C]
Class [D]
Class [E]
Class [F]
Class [G]
Class [H]
Class [X] (2)
Class [R] None
_____________________
(1) The Certificates marked with an
asterisk have not been rated by the
applicable
Rating Agency.
(2) The Class [X] Certificates will
not have a Pass-Through Rate but will bear
interest in an
amount for any Distribution Date equal to the sum of
one-month's
interest at the then applicable Pass-Through Rates on the
Notional Amounts
of the WAC Component and the [A-1] Component immediately
prior to such
Distribution Date. The Pass-Through Rate for the WAC
Component for
any Distribution Date will equal the excess, if any, of the
Weighted Average
Net Mortgage Rate over ___%. The Pass-Through Rate of the
[WAC] Component
for the first Distribution Date is expected to be
approximately
___% per annum. The Pass-Through Rate for the [A-1] Component
for any Distribution Date will
equal ___% per annum.
(3) The Class [X] Certificates will
not have a Certificate Balance and will not
be entitled to
receive distributions of principal. Interest will accrue on
the Components
of such Class at the Pass-Through Rates thereof on the
Notional Amounts
thereof. The Notional Amount of the [WAC] Component for
any Distribution
Date will be equal to the Notional Amount of the Class
[LWAC]
Uncertificated Interest, which will be equal to the aggregate of
the
Stated Principal
Balances of the Mortgage Loans as of the preceding
Distribution
Date (after giving effect to the distribution of principal on
such
Distribution Date) or, in the case of the first Distribution Date,
the
Cut-off Date.
The original Notional Amount of the [WAC] Component is
$________. The
Notional Amount of the [A-1] Component is equal to the
Lower-Tier
Principal Amount of the Class [LA-1] Uncertificated Interest as
of the preceding
Distribution Date (after giving effect to the distribution
of principal and
allocation of Collateral Support Deficit on such
Distribution
Date) or in the case of the first Distribution Date, the
original
Lower-Tier
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Principal Amount
of the Class [LA-1] Uncertificated Interest. The Original
Notional Amount
of the [A-1] Component is $______.
(4) The Class [R] Certificates do not
have a Certificate Balance or Notional
Amount, do not
bear interest and will not be entitled to distributions of
Prepayment
Premiums or Yield Maintenance Charges. Any Available
Distribution
Amount remaining in the Upper-Tier Distribution Account, after
all required
distributions under this Agreement have been made to each
other Class of
Certificates, will be distributed to the Holders of the
Class [R]
Certificates.
The Class [A-1], Class [A-1A], Class [A-2], [Class A-3FL],
Class
[B], Class [C], Class [D], Class [E], Class
[F], Class [G], Class [H] and Class
[X] Certificates will evidence "regular
interests" in the Upper-Tier REMIC
created hereunder. The sole Class of
"residual interests" in the Upper-Tier
REMIC created hereunder will be evidenced
by the Class R Certificates. The Class
[LA-1], Class [LA-1A], Class [LA-2], Class
[LA-3FL], Class [LB], Class [LC],
Class [LD], Class [LE], Class [LF], Class
[LG], Class [LH] and Class [LWAC]
Uncertificated Interests will evidence
"regular interests" in the Lower-Tier
REMIC created hereunder. The sole Class of
"residual interests" in the
Lower-Tier REMIC created hereunder will be
evidenced by the Class [LR]
Certificates.
The following table sets forth the initial Lower-Tier Principal
Amounts and per annum rates of interest for
the Uncertificated Lower-Tier
Interests:
LOWER-TIER REMIC
Class
Original Lower-Tier Principal
Designation
Interest Rate Amount or
Notional Amount
Class [LA-1]
Class [LA-1A]
Class [LA-2]
Class [LA-3FL](5)
Class [LB]
Class [LC]
Class [LD]
Class [LE]
Class [LF]
Class [LG]
Class [LH]
Class [LWAC]
(6)
(7)
Class [LR]
None(8)
None(8)
[The portion of the Trust Fund consisting of the Class A-2FL
Regular
Interest, the Class A-2FL Swap Contract,
the Class A-2FL Floating Rate Account
and the proceeds thereof shall be treated
as another grantor trust (the "Class
A-2FL Grantor Trust") for federal income
tax purposes. The Class A-2FL
Certificates will represent undivided
beneficial interests in the Class A-2FL
Grantor Trust. As provided herein, the
Trustee shall take all actions necessary
to ensure that the portions of the Trust
Fund consisting of the Grantor Trusts
will maintain their
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respective status as a "grantor trust"
under federal income tax law and will not
be treated as part of either the Upper-Tier
REMIC or Lower-Tier REMIC.]
[(5) The Class LA-3FL Uncertificated REMIC
I Regular Interest does not
correspond to
any Class of Certificates. The Class LA-3FL Uncertificated
REMIC I Regular
Interest corresponds to the Class A-3FL Regular Interest.
The pass-through
rate applicable to the Class A-3FL Certificates on each
distribution
date will be a per annum rate equal to LIBOR plus [_]%;
subject to the
provisions of this agreement and the Class A-3FL Swap
Contract, the
pass through rate applicable to the Class A-3FL Certificates
may convert to a
fixed rate equal to [_]% per annum.]
(6) The interest rate of the Class
[LWAC] Uncertificated Interest is the
Weighted Average
Net Mortgage Rate minus ___%.
(7) The Class [LWAC] Uncertificated
Interest has a Notional Amount as of any
Distribution
Date equal to the aggregate Stated Principal Balances of the
Mortgage Loans
as of the preceding Distribution Date (after giving effect
to the
distribution of principal and realized losses on such
Distribution
Date), or the
Cut-off Date in the case of the first Distribution Date.
(8) The Class [LR] Certificates do not
have a Certificate Balance or Notional
Amount, do not
bear interest and will not be entitled to distributions of
Prepayment
Premiums or Yield Maintenance Charges. Any Available
Distribution
Amount remaining in the Lower-Tier Distribution Account after
distributing the
Lower-Tier Distribution Amount shall be distributed to the
Holders of the
Class [LR] Certificates (but only to the extent of the
Available
Distribution Amount for such Distribution Date remaining in the
Lower-Tier
Distribution Account, if any).
As of close of business on the Cut-off Date, the Mortgage Loans
had
an aggregate principal balance, after
application of all payments of principal
due on or before such date, whether or not
received, equal to
$__________.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special
Servicer, the Fiscal Agent and the Trustee
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following words and phrases,
unless the context otherwise
requires, shall have the meanings specified
in this Article.
"A-1 Component": One of the two components comprising the Class
[X]
Certificates representing a "specified
portion" (within the meaning of Treasury
Regulations Section 1.860G-1(a)(2)(i)(C))
of the interest payments on the Class
[LA-1] Uncertificated Interest.
"A-1 Component Interest Accrual Amount": With respect to each
Distribution Date, an amount equal to
interest for the related Interest Accrual
Period at the A-1 Component
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Pass-Through Rate, accrued on the A-1
Notional Amount outstanding immediately
prior to such Distribution Date commencing
in the month of the Closing Date.
"A-1 Component Pass-Through Rate": With respect to any
Distribution
Date, _____% per annum.
"A-1 Notional Amount": With respect to any Distribution Date,
an
amount equal to the Lower-Tier Principal
Amount of the Class [LA-1]
Uncertificated Interest.
"Accrued Certificate Interest": With respect to each
Distribution
Date and each Class of Certificates [and
the Class A-3FL Regular Interest]
(other than Class [X] Certificates and the
Residual Certificates), an amount
equal to interest for the related Interest
Accrual Period at the Pass-Through
Rate applicable to such Class of
Certificates [and the Class A-3FL Regular
Interest] for such Distribution Date,
accrued on the related Certificate Balance
of such Class outstanding immediately prior
to such Distribution Date (i.e.,
such Certificate Balance is to be used for
accrual of interest during the
related Interest Accrual Period
notwithstanding the fact that such Certificate
Balance may be different than the actual
Certificate Balance at the start of
such Interest Accrual Period) commencing in
the month of the Closing Date. With
respect to each Distribution Date and the
Class [X] Certificates, the Class [X]
Interest Accrual Amount. [Except with
respect to the Class A-3FL Certificates,]
Accrued Certificate Interest shall be
calculated on the basis of a 360-day year
consisting of twelve 30-day months.
[Accrued Certificate Interest with respect
to the Class A-3FL Certificates shall be
calculated on an Actual/360 Basis;
provided, however, that if a Class A-3FL
Distribution Conversion has occurred,
Accrued Certificate Interest with respect
to the Class A-3FL Certificates shall
be the same as for the Class A-3FL Regular
Interest.]
"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 and
the Lower-Tier REMIC within the meaning of
Treasury Regulation Section
1.856-6(b)(1), which is the first day on
which the Lower-Tier REMIC is treated
as the owner of such REO Property for
federal income tax purposes.
["Actual/360 Mortgage Loans": The Mortgage Loans indicated as
such
in the Mortgage Loan Schedule.]
"Additional Servicer": Each Affiliate of the Servicer that
services
any of the Mortgage Loans and each Person
who is not an Affiliate of the
Servicer, other than the Special Servicer,
who services 10% or more of the
Mortgage Loans[, including, if applicable,
the Trustee or Paying Agent].
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"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
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<PAGE>
ownership of voting securities, by contract
or otherwise and the terms
"controlling" and "controlled" have
meanings correlative to the foregoing.
"Affiliate Debt": With respect to any Mortgage Loan, any debt
owed
by the related Mortgagor to an Affiliate of
such Mortgagor as of the Closing
Date as set forth on Schedule 3 hereto.
"Agent": As defined in Section 5.02(d)(i)(A).
"Agreement":
This Pooling
and Servicing Agreement and all
amendments hereof and supplements
hereto.
["Anticipated Prepayment Date": With respect to any Mortgage
Loan
that is indicated on the Mortgage Loan
Schedule as having a Revised Rate, the
date upon which such Mortgage Loan
commences accruing interest at such Revised
Rate.]
"Appraisal": An appraisal prepared by an Independent MAI
appraiser
with at least five years experience in
properties of like kind and in the same
area, prepared in accordance with 12 C.F.R.
225.64.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal
Reduction Event has occurred, an amount
equal to the excess, if any, of (a) the
Stated Principal Balance of such
Mortgage Loan over (b) the excess of (i)
90% of the Appraised Value of the
related Mortgaged Property over (ii) the
sum of (a) to the extent not previously
advanced by the Servicer or the Trustee,
all unpaid interest on such Mortgage
Loan at a per annum rate equal to its
Mortgage Rate, (b) all unreimbursed
Advances and interest thereon at the
Reimbursement Rate in respect of such
Mortgage Loan and (c) all currently due and
unpaid real estate taxes and
assessments and insurance premiums and all
other amounts due and unpaid with
respect to such Mortgage Loan, net of any
amounts currently escrowed for such
amounts (which taxes, premiums and other
amounts have not been subject to an
Advance by the Servicer or the Trustee, as
applicable). Within 60 days after the
Appraisal Reduction Event, the Special
Servicer shall obtain an Appraisal (the
cost of which shall be paid as a Servicing
Advance by the Servicer); provided,
however, that with respect to an Appraisal
Reduction Event as set forth in
clause (ii) of the definition of Appraisal
Reduction Event, the Special Servicer
shall obtain such Appraisal within the 120
day period set forth in such clause
(ii), which Appraisal shall be delivered by
the Special Servicer to the
Servicer, and the Servicer shall deliver
such Appraisal to the Trustee, the
Paying Agent and each Holder of a Class
[F], Class [G] and Class [H] Certificate
within 15 days of receipt by the Servicer
of such Appraisal from the Special
Servicer.
With respect to each Mortgage Loan as to which an Appraisal
Reduction has occurred (unless such
Mortgage Loan has become a Corrected
Mortgage Loan and has remained current for
twelve consecutive Monthly Payments
(for such purposes taking into account any
amendment or modification of such
Mortgage Loan)), the Special Servicer
shall, within 30 days of each annual
anniversary of the related Appraisal
Reduction Event, order an Appraisal (which
may be an update of a prior Appraisal), the
cost of which shall be paid by the
Servicer as a Servicing Advance. Based upon
such Appraisal, the Special Servicer
shall redetermine and
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report to the Paying Agent and the Trustee
the amount of the Appraisal Reduction
with respect to such Mortgage Loan and such
redetermined Appraisal Reduction
shall replace the prior Appraisal Reduction
with respect to such Mortgage Loan.
With respect to each Mortgage Loan as to which an Appraisal
Reduction has occurred and which has become
a Corrected Mortgage Loan and has
remained current for twelve consecutive
Monthly Payments (for such purposes
taking into account any amendment or
modification of such Mortgage Loan), and
with respect to which no other Appraisal
Reduction Event has occurred and is
continuing, the Special Servicer may within
30 days of the date of such twelfth
Monthly Payment, order an Appraisal (which
may be an update of a prior
Appraisal), the cost of which shall be paid
by the Servicer as a Servicing
Advance. Based upon such Appraisal, the
Special Servicer shall redetermine and
report to the Paying Agent and the Trustee
the amount of the Appraisal Reduction
with respect to such Mortgage Loan.
Notwithstanding the foregoing, the Special
Servicer will not be required to obtain an
Appraisal with respect to a Mortgage
Loan which is the subject of an Appraisal
Reduction Event to the extent the
Special Servicer has obtained an Appraisal
with respect to the related Mortgaged
Property within the 12-month period
immediately prior to the occurrence of such
Appraisal Reduction Event. Instead, the
Special Servicer may use such prior
Appraisal in calculating any Appraisal
Reduction with respect to such Mortgage
Loan.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage
Loan or the related REO Property will
be reduced to zero as of the date such
Mortgage Loan is paid in full,
liquidated, repurchased or otherwise
removed from the Trust Fund.
"Appraisal Reduction Amount": With respect to any Distribution
Date,
an amount equal to the product of (i) ___ %
per annum, and (ii) the sum of all
Appraisal Reductions with respect to such
Distribution Date.
"Appraisal Reduction Event": With respect to any Mortgage Loan,
the
earliest of (i) the third anniversary of
the date on which the first extension
of the Maturity Date of such Mortgage Loan
becomes effective as a result of a
modification of such Mortgage Loan by the
Special Servicer pursuant to the terms
hereof, which extension does not decrease
the amount of Monthly Payments on the
Mortgage Loan, (ii) 120 days after an
uncured delinquency (without regard to the
application of any grace period) occurs in
respect of such Mortgage Loan, (iii)
the date on which a reduction in the amount
of Monthly Payments on such Mortgage
Loan, or a change in any other material
economic term of such Mortgage Loan
(other than an extension of the Maturity
Date), becomes effective as a result of
a modification of such Mortgage Loan by the
Special Servicer, (iv) 60 days after
a receiver has been appointed, (v) 60 days
after a Mortgagor declares bankruptcy
and (vi) immediately after a Mortgage Loan
becomes an REO Loan; provided,
however, that an Appraisal Reduction Event
shall not occur at any time when the
aggregate Certificate Balances of all
Classes of Certificates (other than the
Class [A] Certificates) has been reduced to
zero. The Special Servicer shall
notify the Servicer promptly upon the
occurrence of any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an
Appraisal of the Mortgaged Property
securing such Mortgage Loan
-7-
<PAGE>
made by an Independent MAI appraiser
selected by the Servicer or Special
Servicer, as applicable.
"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 instrument executed by the
Mortgagor, assigning to the mortgagee all
of the income, rents and profits
derived from the ownership, operation,
leasing or disposition of all or a
portion of such Mortgaged Property, in the
form which was duly executed,
acknowledged and delivered, as amended,
modified, renewed or extended through
the date hereof and from time to time
hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect
to
any Mortgage Loan that is delinquent in
respect of its Balloon Payment
(including any REO Loan as to which the
Balloon Payment would have been past
due), an amount equal to the sum of (a) the
principal portion of the Monthly
Payment that would have been due on such
Mortgage Loan on the related Due Date
based on the constant payment required by
the related Mortgage Note or the
original amortization schedule thereof (as
calculated with interest at the
related Mortgage Rate), if applicable,
assuming such Balloon Payment has not
become due, after giving effect to any
modification of such Mortgage Loan, and
(b) interest on the Stated Principal
Balance of such Mortgage Loan at the
applicable Mortgage Rate (net of interest
at the Servicing Fee Rate).
"Authenticating Agent": Any agent of the Trustee appointed to act
as
Authenticating Agent pursuant to Section
5.01.
"Available
Distribution Amount": With respect to any
Distribution Date, an amount equal to the
sum of (without duplication):
(a) the aggregate amount relating to the Trust Fund on deposit
in
the
Certificate Account and the Lower-Tier Distribution Account
(exclusive
of any
investment income contained therein [and without regard to any
payments
made to or received from the Class A-3FL Swap Counterparty]) as
of the
close of business on the Business Day preceding the related
P&I
Advance
Date, exclusive of:
(i) all Monthly Payments paid by the Mortgagors that are due on
a
Due Date
following the end of the related Due Period;
(ii) all Principal Prepayments (together with any related
payments
of
interest allocable to the period following the Due Date for the
related
Mortgage
Loan during the related Due Period), Balloon Payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds
received after
the end of
the related Due Period;
(iii) all amounts payable or reimbursable to any Person from
the
Certificate Account pursuant to clauses (ii) - (xvi), inclusive,
of
Section
3.05(a);
(iv) all amounts payable or reimbursable to any Person from the
Lower-Tier
Distribution Account pursuant to clauses (ii) - (v), inclusive,
of Section
3.05(b);
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<PAGE>
(v) all Prepayment Premiums and Yield Maintenance Charges;
(vi) [Excess Interest];
(vii) all amounts deposited in the Certificate Account or the
Lower-Tier
Distribution Account, as the case may be, in error;
(viii) [with respect to the Interest Reserve Loans and any
Distribution Date relating to each
Interest Accrual Period ending in (1)
each
January or (2) any December in a year immediately preceding a
year
which is
not a leap year, an amount equal to one day of interest on the
Stated
Principal Balance of such Mortgage Loan as of the Due Date in
the
month
preceding the month in which such Distribution Date occurs at
the
related
Mortgage Rate to the extent such amounts are to be deposited in
the
Interest Reserve Account and held for future distribution pursuant
to
Section
3.25;]
(b) if and to the extent not already included in clause (a)
hereof,
the aggregate amount transferred from the
REO Account to the Certificate Account
for such Distribution Date pursuant to
Section 3.16(c); and
(c) the aggregate amount of any P&I Advances made by the
Servicer,
the Trustee or the Fiscal Agent, as
applicable, for such Distribution Date
pursuant to Section 4.03 or 7.05 (net of
the related Trustee Fee with respect to
the Mortgage Loans for which such P&I
Advances are made); and
(d) [for the Distribution Date occurring in each March, the
Withheld
Amounts remitted to the Lower-Tier
Distribution Account pursuant to Section
3.25(b).]
Notwithstanding the investment of funds
held in the Certificate Account or the
Lower-Tier Distribution Account pursuant to
Section 3.06, for purposes of
calculating the Available Distribution
Amount, the amounts so invested shall be
deemed to remain on deposit in such
account.
"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 Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as
of
any date of determination, the Monthly
Payment payable on the 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).
"Base Interest Fraction": With respect to any Principal
Prepayment
on any Mortgage Loan and with respect to
any of the Class [A], Class [B], Class
[C], Class [D] and Class [E] Certificates
[and the Class A-3FL Regular
Interest], a fraction (A) whose numerator
is the greater of (x) zero and (y) the
difference between (i) the Pass-Through
Rate on such Class of Offered
Certificates and (ii) the Yield Rate, with
respect to Mortgage Loans sold to the
Depositor by __________, or the Discount
Rate, with respect to Mortgage Loans
sold to the Depositor by
-9-
<PAGE>
____________, used in calculating the Yield
Maintenance Charge with respect to
such Principal Prepayment and (B) whose
denominator is the difference between
(i) the Mortgage Rate on the related
Mortgage Loan and (ii) the Yield Rate, with
respect to Mortgage Loans sold to the
Depositor by __________, or the Discount
Rate, with respect to Mortgage Loans sold
to the Depositor by __________, used
in calculating the Yield Maintenance Charge
with respect to such principal
prepayment; provided, however, that under
no circumstances shall the Base
Interest Fraction be greater than one. If
such Yield Rate or Discount Rate, as
the case may be, is greater than the
Mortgage Rate on the related Mortgage Loan,
then the Base Interest Fraction shall equal
zero.
"Book-Entry Certificate": Any Certificate registered in the name
of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day
on
which banking institutions in New York, New
York, or the city and state in which
the Corporate Trust Office of the Trustee
or principal place of business of the
Servicer or the Special Servicer is
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 Depositor's Commercial Mortgage
Pass-Through Certificates, Series 200_-__,
as executed and delivered by the
Certificate Registrar and authenticated and
delivered hereunder by the
Authenticating Agent.
"Certificate Account": The custodial account or accounts created
and
maintained by the Servicer pursuant to
Section 3.04(a) in the name of the
Trustee on behalf of the
Certificateholders, into which the amounts set forth in
Section 3.04(a) shall be deposited
directly. Any such account or accounts shall
be an Eligible Account.
"Certificate Balance": With respect to any Class of
Certificates
(other than the Residual Certificates and
the Class [X] Certificates) [or the
Class A-3FL Regular Interest], (i) on or
prior to the first Distribution Date,
an amount equal to the Original Certificate
Balance of such Class as specified
in the Preliminary Statement hereto, and
(ii) as of any date of determination
after the first Distribution Date, the
Certificate Balance of such Class on the
Distribution Date immediately prior to such
date of determination (determined as
adjusted pursuant to Section 1.02(iii)).
[The Certificate Balance of the Class
A-3FL Certificates shall be equal at all
times to the Certificate Balance of the
Class A-3FL Regular Interest.]
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates [or
the Class A-3FL Regular Interest], the
amount of Mortgage Deferred Interest
allocated to such Class of Certificates [or
the Class A-3FL Regular Interest] pursuant
to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates
[or
the Class A-3FL Regular Interest], as of
any date of determination, a fraction,
expressed as a decimal
-10-
<PAGE>
carried to 8 places, the numerator of which
is the then related Certificate
Balance [or Class A-3FL Regular Interest
Balance], and the denominator of which
is the related Original Certificate Balance
[or Class A-3FL Regular Interest
Balance].
"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 Rating": With respect to the long-term unsecured
debt
of any institution, a long-term debt
obligation rating by each Rating Agency not
lower than the highest rating by such
Rating Agency of any Class of Certificates
then outstanding; provided, however, that
the Certificate Rating will not be
lower than Investment Grade by such Rating
Agency.
"Certificate Register" and "Certificate Registrar": The
register
maintained and registrar appointed pursuant
to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the
Certificate Register, provided, however, that
solely for the purposes of giving any
consent, approval or waiver pursuant to
this Agreement, any Certificate registered
in the name of the Servicer, the
Special Servicer, the Depositor or any
Affiliate of either 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 has been
obtained, if such consent, approval or
waiver sought from such party would in
any way increase its compensation or limit
its obligations as Servicer, Special
Servicer or Depositor, as applicable,
hereunder; provided, however, the Servicer
and Special Servicer shall be entitled to
exercise such Voting Rights with
respect to any issue which could reasonably
be believed to adversely affect such
party's compensation or increase its
obligations or liabilities hereunder; and
provided further, however, that such
restrictions will not apply to the exercise
of the Special Servicer's rights as a
member of the Controlling Class. The
Trustee shall be entitled to request and
rely upon a certificate of the
Servicer, the Special Servicer or the
Depositor in determining whether a
Certificate is registered in the name of an
Affiliate of such Person. All
references herein to "Holders" or
"Certificateholders" shall reflect the rights
of Certificate Owners as they may
indirectly exercise such rights through the
Depository and the Depository Participants,
except as otherwise specified
herein; provided, however, that the parties
hereto shall be required to
recognize as a "Holder" or
"Certificateholder" only the Person in whose name a
Certificate is registered in the
Certificate Register.
"Certifying Servicer": The Servicer, the Special Servicer [,
the
Trustee or Paying Agent, if applicable] or
an Additional Servicer, as the case
may be.
"Class": With respect to any Certificates or Uncertificated
Lower-Tier Interests, all of the
Certificates or Uncertificated Lower-Tier
Interests bearing the same alphabetical
(and, if applicable, numerical) Class
designation.
-11-
<PAGE>
"Class [A] Certificate": Any Class [A-1] or Class [A-2]
Certificate[, Class A-3FL] or Class
[A-1A].
"Class [A-1] Certificate": A Certificate designated as "Class
[A-1]"
on the face thereof, in the form of Exhibit
A-1 hereto.
"Class [A-1] Pass-Through Rate": With respect to any
Distribution
Date, a fixed rate per annum equal to
___%.
"Class [A-1A] Certificate": A Certificate designated as "Class
[A-1A]" on the face thereof, in the form of
Exhibit A-13 hereto.
"Class [A-1A] Pass-Through Rate": With respect to any
Distribution
Date, a fixed per annum rate equal to
___%.
"Class [A-2] Certificate": A Certificate designated as "Class
[A-2]"
on the face thereof, in the form of Exhibit
A-2 hereto.
"Class [A-2] Pass-Through Rate": With respect to any
Distribution
Date, a fixed rate per annum equal to
___%.
["Class A-3FL Distribution Conversion": With respect to any
Distribution Date (i) upon the occurrence
and during the continuation of a Swap
Default while the Trustee on behalf of the
Trust is pursuing remedies under the
Class A-3FL Swap Contract pursuant to
Section 3.30 or (ii) immediately upon and
following the termination of the Class
A-3FL Swap Contract until a replacement
Class A-3FL Swap Contract is entered into,
if any, the conversion of
distributions on the Class A-3FL
Certificates from distributions based, in part,
on floating interest payments from the
Class A-3FL Swap Counterparty under the
Class A-3FL Swap Contract to distributions
based solely on fixed interest
distributions in respect of the Class A-3FL
Regular Interest, as specified in
Section 4.01(j).]
["Class A-3FL Fixed Amount": The "Class A-3FL Fixed Amount" as
defined in the Class A-3FL Swap
Contract.]
["Class A-3FL Fixed Swap Payment": With respect to any
Distribution
Date, the Class A-3FL Fixed Amount required
to be paid to the Class A-3FL Swap
Counterparty by the Trust under the Class
A-3FL Swap Contract.]
["Class A-3FL Floating Amount": The "Floating Amount" as defined
in
the Class A-3FL Swap Contract.]
["Class A-3FL Floating Rate Account": The trust account or
accounts
created and maintained as a separate
account or accounts (or as a subaccount of
the Distribution Account) by the Trustee
pursuant to Section 3.04(d), in the
name of the Trustee on behalf of the
Certificateholders, and which must be an
Eligible Account (or a subaccount of an
Eligible Account). The Class A-3FL
Floating Rate Account shall not be an asset
of either the Lower-Tier REMIC or
Upper-Tier REMIC formed hereunder.]
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<PAGE>
["Class A-3FL Floating Swap Payment": With respect to any
Distribution Date, the Floating Amount
required to be paid to the Trust by the
Class A-3FL Swap Counterparty under the
Class A-3FL Swap Contract.]
["Class A-3FL Grantor Trust": That certain "grantor trust"
(within
the meaning of the Grantor Trust
Provisions), the assets of which are the A-3FL
Grantor Trust Assets.]
["Class A-3FL Grantor Trust Assets": The segregated pool of
assets
consisting of the A-3FL Regular Interest,
the Class A-3FL Swap Contract, the
Class A-3FL Floating Rate Account and the
proceeds thereof, the beneficial
ownership of which is represented by the
Class A-3FL Certificates.]
["Class
A-3FL Interest Distribution Amount": With respect to any
Distribution Date, an amount equal to the
sum of (i) amounts in respect of
interest received in respect of the Class
A-3FL Regular Interest for such
Distribution Date, (ii) the Class A-3FL
Floating Swap Payment and (iii) any
termination payment paid by the Class A-3FL
Swap Counterparty to the Trustee
upon the termination of the Class A-3FL
Swap Contract provided no replacement
Class A-3FL Swap Contract has been entered
into prior to such Distribution Date,
less (iv) the Class A-3FL Fixed Swap
Payment for such Distribution Date.]
["Class A-3FL Net Swap Payment": With respect to the related
Interest Accrual Period, the excess, if any
of (i) the Class A-3FL Fixed Swap
Payment over (ii) the Class A-3FL Floating
Swap Payment.
["Class A-3FL Pass-Through Rate": With respect to any
Distribution
Date, a fixed per annum rate equal to LIBOR
plus ___%.]
["Class A-3FL Principal Distribution Amount": With respect to
any
Distribution Date, an amount equal to the
amount of principal allocated pursuant
to Section 4.01 in respect of the Class
A-3FL Regular Interest on such
Distribution Date.]
["Class A-3FL Regular Interest": The uncertificated interest in
the
Upper-Tier REMIC, designated as "Class
A-3FL," constituting a "regular interest"
in the Upper-Tier REMIC for purposes of the
REMIC Provisions and having the
characteristics attributable thereto in
this Agreement.]
["Class A-3FL Swap Contract": The 1992 ISDA Master Agreement
(Multi-Currency Cross Border) together with
the related schedule, confirmation
and any annexes thereto, dated as of____,
20__, by and among the Class A-3FL
Swap Counterparty and the Trustee, solely
in its capacity as Trustee, on behalf
of the Trust, or any replacement interest
rate swap agreement entered into by
the Trustee in accordance with this
Agreement.]
["Class A-3FL Swap Counterparty": [_], a [_______], acting in
such
capacity or its successor in interest or
any counterparty under a replacement
Class A-3FL Swap Contract.]
["Class A-3FL Swap Default": Any failure on the part of the
Class
A-3FL Swap Counterparty to (i) make a
required payment under the Class A-3FL
Swap Contract, as and when due thereunder,
or (ii) either post acceptable
collateral or find an acceptable
replacement swap
-13-
<PAGE>
counterparty after a Rating Agency Trigger
Event has occurred as required by
Part 1, paragraph (_) of the Schedule of
the Master Agreement in the Class A-3FL
Swap Contract or any early termination date
as designated under the Class A-3FL
Swap Contract shall have occurred.]
["Class A-3FL Swap Termination Fees": Any fees or expenses
payable
by the Class A-3FL Swap Counterparty to the
Trust in connection with a Class
A-3FL Swap Default, termination of the
Class A-3FL Swap Contract or liquidation
of the Class A-3FL Swap Contract, as
specified in the Class A-3FL Swap
Contract.]
"Class [B] Certificate": A Certificate designated as "[Class B]"
on
the face thereof, in the form of Exhibit
A-3 hereto.
"Class [B] Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to
___%.
"Class [C] Certificate": A Certificate designated as "[Class C]"
on
the face thereof, in the form of Exhibit
A-4 hereto.
"Class [C] Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to
___%.
"Class D Certificate": A Certificate designated as "[Class D]"
on
the face thereof, in the form of Exhibit
A-5 hereto.
"Class [D] Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to
___%.
"Class [E] Certificate": A Certificate designated as "[Class E]"
on
the face thereof, in the form of Exhibit
A-6 hereto.
"Class [E] Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to
___%.
"Class [F] Certificate": A Certificate designated as "[Class F]"
on
the face thereof, in the form of Exhibit
A-7 hereto.
"Class [F] Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to
___%.
"Class [G] Certificate": A Certificate designated as "[Class G]"
on
the face thereof, in the form of Exhibit
A-8 hereto.
"Class [G] Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to
___%.
"Class [H] Certificate": A Certificate designated as "[Class H]"
on
the face thereof, in the form of Exhibit
A-9 hereto.
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<PAGE>
"Class [H] Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to
___%.
"Class [LA-1] Interest Fraction": With respect to any
Distribution
Date, a fraction, the numerator of which is
the [A-1] Component Interest Accrual
Amount and the denominator of which is the
sum of the [A-1] Component Interest
Accrual Amount and the WAC Component
Interest Accrual Amount.
"Class [LA-1] Uncertificated Interest": A regular interest in
the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class [LA-1A] Uncertificated Interest": A regular interest in
the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class [LA-2] Uncertificated Interest": A regular interest in
the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
["Class LA-3FL Uncertificated Interest": A regular interest in
the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.]
"Class [LB] Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class [LC] Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class [LD] Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class [LE] Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class [LF] Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class [LG] Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
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<PAGE>
"Class [LH] Uncertificated Interest": A regular interest in the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount
and per annum rate of interest set
forth in the Preliminary Statement
hereto.
"Class [LR] Certificate": A Certificate designated as "Class
[LR]"
on the face thereof, in the form of Exhibit
A-12 hereto.
"Class [LWAC] Notional Amount": As of any Distribution Date, an
amount equal to the aggregate Stated
Principal Balances of the Mortgage Loans as
of the preceding Distribution Date (after
giving effect to the distribution of
principal and realized losses on such
Distribution Date), or the Cut-off Date in
the case of the first Distribution
Date.
"Class [LWAC] Pass-Through Rate": For any Distribution Date,
the
Weighted Average Net Mortgage Rate for such
Distribution Date minus ___%.
"Class [LWAC] Uncertificated Interest": A regular interest in
the
Lower-Tier REMIC which is held as an asset
of the Upper-Tier REMIC and having
the initial Notional Amount and per annum
rate of interest set forth in the
Preliminary Statement hereto, representing
a "specified portion" (within the
meaning of Treasury Regulations Section
1.860G-1(a)(2)(i)(C)) of the interest
payments on the Mortgage Loans.
"Class [R] Certificate": A Certificate designated as "Class [R]"
on
the face thereof, in the form of Exhibit
A-11 hereto.
"Class Unpaid Interest Shortfall": As to any Distribution Date
and
any Class of Regular Certificates, the
excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in
respect of such Class for the immediately
preceding Distribution Date and (ii) any
outstanding Class Unpaid Interest
Shortfall payable to such Class on such
preceding Distribution Date over (b) the
aggregate amount in respect of interest
actually distributed to such Class on
such immediately preceding Distribution
Date. The Class Unpaid Interest
Shortfall with respect to any Class of
Certificates as of the initial
Distribution Date is zero. No interest
shall accrue on Class Unpaid Interest
Shortfalls.
"Class [X] Certificate": A Certificate designated as "Class [X]"
on
the face thereof, in the form of Exhibit
A-10 hereto.
"Class [X] Interest Accrual Amount": With respect to any
Distribution Date, the sum of the A-1
Component Interest Accrual Amount and the
WAC Component Interest Accrual Amount.
"Closing
Date": _________, 200_.
"CMSA Periodic Update Report": The monthly report to be prepared
by
the Servicer and delivered to the Trustee,
the Paying Agent, the Special
Servicer, the Depositor and each Rating
Agency pursuant to Section 4.02(b), in
electronic medium, which electronic medium
is reasonably acceptable to the
Paying Agent and the Servicer, containing
such information as is set forth in
Section 4.02(b) regarding the Mortgage
Loans and such other information as will
permit the Paying Agent to calculate the
amounts to be distributed pursuant to
Section 4.01 and
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<PAGE>
to furnish or make available statements to
Certificateholders pursuant to
Section 4.02 and containing such additional
information as the Servicer, the
Special Servicer and the Paying Agent may
from time to time agree.
"Code": The Internal Revenue Code of 1986, as amended from time
to
time, and applicable final or temporary
regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Collection Report": The monthly report to be prepared by the
Servicer and delivered to the Trustee, the
Paying Agent, the Special Servicer,
the Depositor and each Rating Agency
pursuant to Section 4.02(b), in writing and
in electronic medium, in form reasonably
acceptable to the Paying Agent,
containing such information as is set forth
in Section 4.02(b) regarding the
Mortgage Loans and such other information
as will permit the Paying Agent to
calculate the amounts to be distributed
pursuant to Section 4.01 and to furnish
statements to Certificateholders pursuant
to Section 4.02 and containing such
additional information as the Servicer, the
Special Servicer and the Paying
Agent may from time to time agree.
"Commission": The Securities and Exchange Commission.
"Component": The A-1 Component or the WAC Component.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates
then outstanding that has a then
aggregate Certificate Balance at least
equal to the lesser of (a) 1% of the
outstanding aggregate principal balance of
the Mortgage Loans as of the Closing
Date or (b) 20% of the initial Certificate
Balance of such Class of Certificates
in the case of Class [H] Certificates, or
25% of the initial Certificate Balance
of such Class in the case of any other
Class of Certificates. For purposes of
determining the identity of the Controlling
Class, the Certificate Balance of
each Class shall be deemed to be reduced by
the amount allocated to such Class
of any Appraisal Reductions relating to
Mortgage Loans as to which Liquidation
Proceeds or other final payment has not yet
been received. As of the Closing
Date, the Controlling Class will be the
Class [H] Certificates.
"Controlling Class Certificateholders": Each Holder (or
Certificate
Owner, if applicable) of a Certificate of
the Controlling Class as certified by
the Certificate Registrar to the Trustee
from time to time by such Holder (or
Certificate Owner).
"Corporate Trust Office": The principal 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
_________________________, Attention:
____________________________, GE Commercial
Mortgage Corporation, Series
200_-___ (telecopy number (___)
________).
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan
that
has become current and remained current for
three consecutive Monthly Payments
(for such purposes taking into account any
modification or amendment of such
Mortgage Loan) and (provided, that no
additional default is foreseeable in the
reasonable judgment of the Special
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Servicer) the Special Servicer has returned
servicing of such Mortgage Loan to
the Servicer pursuant to Section
3.21(a).
"Credit File": Any documents, other than documents required to
be
part of the related Mortgage File, in the
possession of the Servicer and
relating to the origination and servicing
of any Mortgage Loan.
"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, either
Mortgage Loan Seller or an Affiliate
of any of them. The Trustee shall be the
initial Custodian.
"Cut-off Date": __________, 200_.
"Cut-off Date Principal Balance": With respect to any Mortgage
Loan,
the outstanding principal balance of such
Mortgage Loan as of the Cut-off Date,
after application of all payments of
principal due on or before such date,
whether or not received.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan
for
any twelve month period covered by an
annual operating statement for the related
Mortgaged Property, the ratio of (i) Net
Operating Income produced by the
related Mortgaged Property during such
period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon
Payment) due under such Mortgage Loan
during such period, provided, that with
respect to the Mortgage Loans which
initially pay interest only, the related
Monthly Payment will be calculated (for
purposes of this definition only) to
include principal (based upon a 25-year
amortization schedule) and interest
payments from origination.
"Default Interest": With respect to any defaulted Mortgage Loan
which is in default pursuant to the terms
of the related Mortgage Loan Documents
for any related Due Period, all interest
accrued in respect of such Mortgage
Loan during such Due Period provided for in
the related Mortgage Note or
Mortgage as a result of the related default
(exclusive of late payment charges)
that is in excess of interest at the
related Mortgage Rate accrued on the unpaid
principal balance of such Mortgage Loan
outstanding from time to time during
such Due Period.
"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent
at
least sixty days in respect of its Monthly
Payments or more than thirty days
delinquent in respect of its Balloon
Payment, if any, 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.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(e).
"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.
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"Definitive Certificate": As defined in Section 5.01(a).
"Denomination": As defined in Section 5.01(a).
"Depositor": GE Commercial Mortgage Corporation, a Delaware
corporation, or its successor in
interest.
"Depository": The Depository Trust Company, or any successor
Depository hereafter named. The nominee of
the initial Depository for purposes
of registering those Certificates that are
to be Book-Entry Certificates, is
Cede & Co. The Depository shall at all
times be a "clearing corporation" as
defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New
York and a "clearing agency" registered
pursuant to the provisions of Section
17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other
financial
institution or other Person for whom from
time to time the Depository effects
book-entry transfers and pledges of
securities deposited with the Depository.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
___
day of the month in which such Distribution
Date occurs, or if such ___ day is
not a Business Day, the immediately
succeeding Business Day.
"Directing Certificateholder": The Controlling Class
Certificateholder selected by more than 50%
of the Controlling Class
Certificateholders, by Certificate Balance,
as certified by the Certificate
Registrar from time to time; provided,
however, that (i) absent such selection,
or (ii) until a Directing Certificateholder
is so selected or (iii) upon receipt
of a notice from a majority of the
Controlling Class Certificateholders, by
Certificate Balance, that a Directing
Certificateholder is no longer designated,
the Controlling Class Certificateholder
that owns the largest aggregate
Certificate Balance of the Controlling
Class will be the Directing
Certificateholder.
"Directly Operate": With respect to any REO Property, the
furnishing
or rendering of services to the tenants
thereof that are not customarily
provided to tenants in connection with the
rental of space "for occupancy only"
within the meaning of Treasury Regulations
Section 1.512(b)-1(c)(5), the
management or operation of such REO
Property, the holding of such REO Property
primarily for sale to customers, the
performance of any construction work
thereon (other than the completion of a
building or improvement, where more than
10% of the construction of such building or
improvement was completed before
default became imminent) or any use of such
REO Property in a trade or business
conducted by the Trust Fund other than
through an Independent Contractor;
provided, however, that the Trustee (or the
Special Servicer on behalf of the
Trustee) shall not be considered to
Directly Operate an REO Property solely
because the Trustee (or the Special
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 or takes other actions consistent
with Treasury Regulations Section
1.856-4(b)(5)(ii).
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"Discount Rate": A rate which, when compounded monthly, is
equivalent to the Yield Rate when
compounded semi-annually.
"Disqualified Organization": Any of (i) the United States, any
State
or political subdivision thereof, any
possession of the United States 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 a
majority of its board of directors is not
selected by such governmental unit),
(ii) a foreign government, any
international organization or any agency or
instrumentality of any of the foregoing,
(iii) any organization (other than
certain farmers' cooperatives described in
Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of
the Code (including the tax imposed
by Section 511 of the Code on unrelated
business taxable income), (iv) rural
electric and telephone cooperatives
described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated
by the Servicer based upon an
Opinion of Counsel that the holding of an
Ownership Interest in a Residual
Certificate by such Person may cause either
the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a
REMIC 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 any
Distribution Date, as to any Class of
Regular Certificates [and the Class A-3FL
Regular Interest], the Accrued Certificate
Interest in respect of such Class of
Regular Certificates [or Class A-3FL
Regular Interest] for such Distribution
Date, reduced (to not less than zero) by
any allocations to such Class of
Certificates A-3FL Regular Interest] (other
than in the case of the Class [X]
Certificates) of any Certificate Deferred
Interest for such Distribution Date.
"Distribution Accounts": Collectively, the Upper-Tier
Distribution
Account and the Lower-Tier Distribution
Account[, the Class A-3FL Floating Rate
Account] [and the Excess Interest
Distribution Account].
"Distribution Date": The __th day of any month, or if such __th
day
is not a Business Day, the Business Day
immediately following, commencing in
__________ 200_.
"Distribution Date
Statement": As defined in Section 4.02(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to
its
Maturity Date, the day of the month set
forth in the related Mortgage Note on
which each Monthly Payment thereon is
scheduled to be first due, (ii) any
Mortgage Loan after the Maturity Date
therefor, the day of the month set forth
in the related Mortgage Note on which each
Monthly Payment on such Mortgage Loan
had been scheduled to be first due, and
(iii) any REO Loan, the day of the month
set forth in the related Mortgage Note on
which each Monthly Payment on the
related Mortgage Loan had been scheduled to
be first due.
"Due Period": With respect to any Distribution Date, the period
commencing on the _____ day of the month
preceding the month in which such
Distribution Date occurs and
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ending on the _____ day of the month in
which such Distribution Date occurs.
Notwithstanding the foregoing, in the event
that the last day of a Due Period is
not a Business Day, any payments received
with respect to the Mortgage Loans
relating to such Due Period on the Business
Day immediately following such day
shall be deemed to have been received
during such Due Period and not during any
other Due Period.
"Eligible Account": Either (i) an account or accounts
maintained
with a federal or state chartered
depository institution or trust company the
long-term unsecured debt obligations of
which are rated at least "AA-" by ___
and ___, or, if not rated by ___, at least
"A" or its equivalent by another
nationally recognized statistical rating
agency, if the deposits are to be held
in such account for more than 30 days or
the short-term debt obligations of
which have a short-term rating of not less
than "A-1" from ___ and "D-1+" from
___ (if rated by ___) if the deposits are
to be held in such account for less
than 30 days, or such other account or
accounts with respect to which each of
the Rating Agencies shall have confirmed in
writing that the then current rating
assigned to any of the Certificates that
are currently being rated by such
Rating Agency will not be qualified,
downgraded or withdrawn by reason thereof
or (ii) a segregated trust account or
accounts maintained with the corporate
trust department of a federal or state
chartered depository institution or trust
company that, in either case, has a
combined capital and surplus of at least
$50,000,000 and has corporate trust powers,
acting in its fiduciary capacity,
provided that any state chartered
depository institution or trust company is
subject to regulation regarding fiduciary
funds substantially similar to 12
C.F.R. ss. 9.10(b). Eligible Accounts may
bear interest. No Eligible Account
shall be evidenced by a certificate of
deposit, passbook or other similar
instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer
that
is purchasing for its own account or for
the account of a Qualified
Institutional Buyer to whom notice is given
that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii)
an Institutional Accredited
Investor.
"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 Specially
Serviced Mortgage Loans 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
Loans as to which the related Mortgaged
Property is a non-multifamily property.
"ERISA": The Employee Retirement Income Security Act of 1974,
as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(d).
"Escrow Payment": Any payment received by the Servicer for the
account of any Mortgagor for application
toward the payment of real estate
taxes, assessments, insurance premiums,
ground lease rents and similar items in
respect of the related Mortgaged Property,
including amounts for deposit to any
reserve account.
"Event of Default": One or more of the events described in
Section
7.01(a).
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["Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as
having a Revised Rate, interest
accrued on such Mortgage Loan after the
Anticipated Prepayment Date allocable to
the Excess Rate, including all interest
accrued thereon. The Excess Interest
shall not be an asset of the Lower-Tier
REMIC or the Upper-Tier REMIC formed
hereunder.]
["Excess Interest Distribution Account": The trust account or
accounts created and maintained as a
separate account or accounts by the Paying
Agent pursuant to Section 3.04(c), which
shall be entitled [__________], as
Paying Agent, in trust for the Holders of
GE Commercial Mortgage Corporation,
Commercial Mortgage Pass-Through
Certificates, Series 200_-__, Excess Interest
Distribution Account," and which must be an
Eligible Account. The Excess
Interest Distribution Account shall not be
an asset of the Lower-Tier REMIC or
the Upper-Tier REMIC formed hereunder.]
["Excess Rate": With respect to each of the Mortgage Loans
indicated
on the Mortgage Loan Schedule as having a
Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the
applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.]
"Exchange Act": The Securities Exchange Act of 1934, as amended
from
time to time.
["Extension Adviser": As defined in Section 3.26(a).]
"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 or REO Property (other than
a Mortgage Loan or REO Property, as the
case may be, that was purchased by a
Mortgage Loan Seller pursuant to Section 3
of the related Mortgage Loan Purchase
Agreement, by the Servicer or the Special
Servicer pursuant to Section 3.18(b),
or by the Servicer, the Special Servicer,
the Holders of the Controlling Class
or the Holders of the Class [LR]
Certificates pursuant to Section 9.01) that
there has been a recovery of all Insurance
and Condemnation Proceeds,
Liquidation Proceeds and other payments or
recoveries that, in the Special
Servicer's judgment, exercised without
regard to any obligation of the Special
Servicer to make payments from its own
funds pursuant to Section 3.07(b), will
ultimately be recoverable.
"Fiscal Agent": ___________, a _________banking corporation, in
its
capacity as fiscal agent hereunder, and its
successors in interest, or any
successor Fiscal Agent appointed
hereunder.
"FNMA": Federal National Mortgage Association or any successor
thereto.
"Grantor Trust Provisions": Sections 671-679 of the Code and
Treasury Regulations Section
301.7701-4(c).
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"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, and
specifically including, without limitation,
asbestos and asbestos-containing materials,
polychlorinated biphenyls, radon
gas, petroleum and petroleum products, urea
formaldehyde and any substances
classified as being "in inventory," "usable
work in process" or similar
classification which would, if classified
as unusable, be included in the
foregoing definition.
"Independent": When used with respect to any specified Person,
any
such Person who (i) is in fact independent
of the Trustee, the Depositor, the
Servicer, the Special Servicer, the
Directing Certificateholder and any and all
Affiliates thereof, (ii) does not have any
material direct financial interest in
or any material indirect financial interest
in any of the Trustee, the
Depositor, the Servicer, the Special
Servicer, the Directing Certificateholder
or any Affiliate thereof and (iii) is not
connected with the Trustee, the
Depositor, the Servicer, the Special
Servicer, the Directing Certificateholder
or any Affiliate thereof as an officer,
employee, promoter, underwriter,
trustee, partner, director or Person
performing similar functions; provided,
however, that a Person shall not fail to be
Independent of the Trustee, the
Depositor, the Servicer, the Special
Servicer or any Affiliate thereof merely
because such Person is the beneficial owner
of 1% or less of any Class of
securities issued by the Trustee, the
Depositor, the Servicer, the Special
Servicer, the Directing Certificateholder
or any Affiliate thereof, as the case
may be.
"Independent Contractor": Either (i) any Person that would be
an
"independent contractor" with respect to
the Trust within the meaning of Section
856(d)(3) of the Code if the Trust 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% or more of any Class of
Certificates, or such other interest in any
Class of Certificates as is set
forth in an Opinion of Counsel, which shall
be at no expense to the Trustee, the
Servicer or the Trust, delivered to the
Trustee and the Servicer), so long as
the Trust does not receive or derive any
income from such Person and provided
that the relationship between such Person
and the Trust is at arm's length, all
within the meaning of Treasury Regulation
Section 1.856-4(b)(5) (except that the
Servicer or the Special Servicer shall not
be considered to be an Independent
Contractor under the definition in this
clause (i) unless an Opinion of Counsel
has been delivered to the Trustee to that
effect) or (ii) any other Person
(including the Servicer and the Special
Servicer) upon receipt by the Trustee
and the Servicer of an Opinion of Counsel,
which shall be at no expense to the
Trustee, the Servicer 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.
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"Institutional Accredited Investor": As defined in Section
5.02(b).
"Insurance and Condemnation Proceeds": All proceeds paid under
any
Insurance Policy or in connection with the
full or partial condemnation of a
Mortgaged Property, in either case, to the
extent such proceeds are not applied
to the restoration of the related Mortgaged
Property or released to the
Mortgagor or any tenants or ground lease,
in either case, in accordance with the
Servicing Standards.
"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.
"Interest Accrual Period": With respect to any Class of Regular
Certificates [(other than the Class A-3FL
Certificates), or the Class A-3FL
Regular Interest,] or Uncertificated
Lower-Tier Interests and any Distribution
Date, the period beginning on the first day
of the calendar month preceding the
calendar month in which the related
Distribution Date occurs and ending on the
last day of the calendar month preceding
the calendar month in which such
Distribution Date occurs [calculated
assuming that each month has 30 days and
each year has 360 days]. [With respect to
the Class A-3FL Certificates, interest
shall be calculated on an Actual/360 Basis
and, for any Distribution Date, shall
be deemed to accrue during the period from
and including the __ day of the month
preceding the month in which the related
Distribution Date occurs (or, in the
case of the first Distribution Date, the
Closing Date to____) to but excluding
the ___ day of the month in which the
related Distribution Date occurs;
provided, however, that if a Class A-3FL
Distribution Conversion has occurred,
the Accrued Certificate Interest with
respect to the Class A-3FL Certificates
shall be the same as the Accrued
Certificate Interest for the Class A-3FL
Regular Interest.]
"Interest Distribution Amount": With respect to any Class of
Regular
Certificates [and the Class A-3FL Regular
Interest] for any Distribution Date,
an amount equal to the sum of the
Distributable Certificate Interest and the
Class Unpaid Interest Shortfall with
respect to such Class of Regular
Certificates for such Distribution
Date.
["Interest Reserve Account": The trust account created and
maintained by the Paying Agent pursuant to
Section 3.25 in the name of the
Trustee on behalf of the
Certificateholders, into which the amounts set forth in
Section 3.25 shall be deposited directly
and which must be an Eligible Account.]
["Interest Reserve Loans": The Actual/360 Mortgage Loans.]
"Interested Person": The Depositor, the Servicer, the Special
Servicer, any Independent Contractor
engaged by the Special Servicer, any Holder
of a Certificate or any Affiliate of any
such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Grade": With respect to any Certificate, ratings
assigned to such Certificate by ___ and ___
no lower than "BBB-."
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"Investment Representation Letter": As defined in Section
5.02(b).
"Issue Price":
With respect to each
Class of Certificates,
the
"issue price" as defined in the REMIC
Provisions.
"Late Collections": With respect to any Mortgage Loan, all
amounts
received thereon during any Due Period (or
the related grace period), whether as
payments, Insurance and Condemnation
Proceeds, Liquidation Proceeds or
otherwise, which represent late payments or
collections of principal or interest
due in respect of such Mortgage Loan
(without regard to any acceleration of
amounts due thereunder by reason of
default) on a Due Date in a previous Due
Period and not previously recovered. With
respect to any REO Loan, all amounts
received in connection with the related REO
Property during any Due Period
(including any grace period), whether as
Insurance and Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or
otherwise, which represent late
collections of principal or interest due or
deemed due in respect of such REO
Loan or the predecessor Mortgage Loan
(without regard to any acceleration of
amounts due under the predecessor Mortgage
Loan by reason of default) on a Due
Date in a previous Due Period and not
previously recovered. The term "Late
Collections" shall specifically exclude
Penalty Charges.
["LIBOR": With respect to the Class A-3FL Certificates and each
Interest Accrual Period, the rate for
deposits in U.S. Dollars, for a period
equal to one month, which appears on the
Dow Jones Market Service (formerly
Telerate) Page 3750 as of 11:00 a.m.,
London time, on the related LIBOR
Determination Date. If such rate does not
appear on Dow Jones Market Service
Page 3750, the rate for that Interest
Accrual Period will be determined on the
basis of the rates at which deposits in
U.S. Dollars are offered by any four
major reference banks in the London
interbank market selected by the Trustee to
provide such bank's offered quotation of
such rates at approximately 11:00 a.m.,
London time, on the related LIBOR
Determination Date to prime banks in the
London interbank market for a period of one
month, commencing on the first day
of such Interest Accrual Period and in an
amount that is representative for a
single such transaction in the relevant
market at the relevant time. The Trustee
will request the principal London office of
any four major reference banks in
the London interbank market selected by the
Trustee to provide a quotation of
such rates, as offered by each such bank.
If at least two such quotations are
provided, the rate for that Interest
Accrual Period will be the arithmetic mean
of the quotations. If fewer than two
quotations are provided as requested, the
rate for that Interest Accrual Period will
be the arithmetic mean of the rates
quoted by major banks in New York City
selected by the Trustee, at approximately
11:00 a.m., New York City time, on the
LIBOR Determination Date with respect to
such Interest Accrual Period for loans in
U.S. Dollars to leading European banks
for a period equal to one month, commencing
on the LIBOR Determination Date with
respect to such Interest Accrual Period and
in an amount that is representative
for a single such transaction in the
relevant market at the relevant time. The
Trustee will determine LIBOR for each
Interest Accrual Period and the
determination of LIBOR by Trustee will be
binding absent manifest error.]
["LIBOR Business Day": Any day on which commercial banks are
open
for international business (including
dealings in U.S. Dollar deposits) in
London, England and New York, New
York.]
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["LIBOR Determination Date": (i) with respect to the initial
Interest Accrual Period, the date that is
two LIBOR Business Days prior to the
Closing Date, and (ii) with respect to each
Interest Accrual Period thereafter,
the date that is two LIBOR Business Days
prior to the beginning of the related
Interest Accrual Period.]
"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 Section 3 of the
related Mortgage Loan Purchase Agreement;
(iv) such Mortgage Loan is purchased
by the Servicer or the Special Servicer
pursuant to Section 3.18(b); or (v) such
Mortgage Loan is purchased by the Servicer,
the Special Servicer, the Holders of
the Controlling Class or the Holders of the
Class [LR] Certificates 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 or (ii) such REO
Property is purchased by the Servicer, the
Special Servicer, the Holders of the
Controlling Class or the Holders of the
Class [LR] Certificates pursuant to Section
9.01.
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage
Loan as to which the Special
Servicer receives a full or discounted
payoff with respect thereto from the
related Mortgagor or any Liquidation
Proceeds with respect thereto, equal to the
product of the Liquidation Fee Rate and the
proceeds of such full or discounted
payoff or the net Liquidation Proceeds (net
of the related costs and expenses
associated with the related liquidation)
related to such liquidated Specially
Serviced Mortgage Loan, as the case may be;
provided, however, that no
Liquidation Fee shall be payable with
respect to clauses (iii)-(v) of the
definition of Liquidation Proceeds.
"Liquidation Fee Rate": A rate equal to __%.
"Liquidation Proceeds": Cash amounts (other than Insurance and
Condemnation Proceeds and REO Revenues)
received or paid by the Servicer in
connection with: (i) 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; (ii)
the realization upon any deficiency
judgment obtained against a Mortgagor; (iii)
the purchase of a Defaulted Mortgage Loan
by the Servicer or the Special
Servicer pursuant to Section 3.18(b) or any
other sale thereof pursuant to
Section 3.18(c); (iv) the repurchase of a
Mortgage Loan by a Mortgage Loan
Seller pursuant to Section 3 of the related
Mortgage Loan Purchase Agreement; or
(v) the purchase of a Mortgage Loan or REO
Property by the Servicer, Special
Servicer, the Holders of the Controlling
Class or the Holders of the Class [LR]
Certificates pursuant to Section 9.01.
"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.
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"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, an amount equal to the
sum of (a) the Loan Group 1 Principal
Shortfall for such Distribution Date, (b)
that portion, if any, of the Scheduled
Principal Distribution Amount for such
Distribution Date attributable to Loan
Group 1 and (c) that portion, if any, of
the Unscheduled Principal Distribution
Amount for such Distribution Date
attributable to Loan Group 1.
"Loan Group 1 Principal Shortfall": For any Distribution Date
after
the initial Distribution Date, the amount,
if any, by which (a) the lesser of
(i) the Loan Group 1 Principal Distribution
Amount for the prior Distribution
Date and (ii) the Certificate Balance of
the Class A Certificates (other than
the Class A-1A Certificates), exceeds (b)
the aggregate amount distributed in
respect of principal on the Class A
Certificates (other than the Class A-1A
Certificates) on the preceding Distribution
Date. The Loan Group 1 Principal
Shortfall for the initial Distribution Date
will be zero.
"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, an amount equal to the
sum of (a) the Loan Group 2 Principal
Shortfall for such Distribution Date, (b)
that portion, if any, of the Scheduled
Principal Distribution Amount for such
Distribution Date attributable to Loan
Group 2 and (c) that portion, if any, of
the Unscheduled Principal Distribution
Amount for such Distribution Date
attributable to Loan Group 2.
"Loan Group 2 Principal Shortfall": For any Distribution Date
after
the initial Distribution Date, the amount,
if any, by which (a) the lesser of
(i) the Loan Group 2 Principal Distribution
Amount for the prior Distribution
Date and (ii) the Certificate Balance of
the Class A-1A Certificates, exceeds
(b) the aggregate amount distributed in
respect of principal on the Class A-1A
Certificates on the preceding Distribution
Date. The Loan Group 2 Principal
Shortfall for the initial Distribution Date
will be zero.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of
any
date of determination, the fraction,
expressed as a percentage, the numerator of
which is the scheduled principal balance of
such Mortgage Loan at the time of
determination, and the denominator of which
is the Original Value of the related
Mortgaged Property.
"Lower-Tier Distribution Account": The segregated account or
accounts created and maintained by the
Paying Agent pursuant to Section 3.04(b)
in trust for the Certificateholders, which
shall be entitled
"___________________________, as Paying
Agent, in trust for the registered
Holders of GE Commercial Mortgage
Corporation,
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Commercial Mortgage Pass-Through
Certificates, Series 200_-_, Lower-Tier
Distribution Account." Any such account or
accounts shall be an Eligible
Account.
"Lower-Tier Distribution Amount": As defined in Section
4.01(b).
"Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interests (other
than the Class [LWAC] Uncertificated
Interest), (i) on or prior to the first
Distribution Date, an amount equal to
the Original Lower-Tier Principal Amount of
such Class as specified in the
Preliminary Statement hereto, and (ii) as
of any date of determination after the
first Distribution Date, an amount equal to
the Certificate Balance of the Class
of Related Certificates on the Distribution
Date immediately prior to such date
of determination (determined as adjusted
pursuant to Section 1.02(iii)).
"Lower-Tier REMIC": One of two separate REMICs comprising the
Trust
Fund, the assets of which consist of the
Mortgage Loans [exclusive of Excess
Interest], any REO Property with respect
thereto, such amounts as shall from
time to time be held in the Certificate
Account, the REO Account, if any, [the
Interest Reserve Account] and the
Lower-Tier Distribution Account, and all other
property included in the Trust Fund that is
not in the Upper-Tier REMIC.
"MAI": Member of the Appraisal Institute.
"Maturity Date": With respect to any Mortgage Loan as of any date
of
determination, the date on which the last
payment of principal is due and
payable under the related Mortgage Note,
after taking into account all Principal
Prepayments received prior to such date of
determination, but without giving
effect to (i) any acceleration of the
principal of such Mortgage Loan by reason
of default thereunder, (ii) any grace
period permitted by the related Mortgage
Note, or (iii) any modification, waiver or
amendment of such Mortgage Loan
granted or agreed to by the Servicer or the
Special Servicer pursuant to Section
3.20 occurring prior to such date of
determination.
"Monthly Payment": With respect to any Mortgage Loan, the
scheduled
monthly payment of principal and/or
interest on such Mortgage Loan, including
any Balloon Payment, which is payable by a
Mortgagor from time to time under the
related Mortgage Note and applicable law,
without regard to any acceleration of
principal of such Mortgage Loan by reason
of default thereunder [and without
respect to any excess Interest,] or any
modification, waiver or amendment of
such Mortgage Loan granted or agreed to by
the Servicer or the Special Servicer
pursuant to Section 3.20.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed
of
trust or other instrument securing a
Mortgage Note and creating a lien on the
fee or leasehold interest in the related
Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan
as
of any Due Date that has been modified to
reduce the rate at which interest is
paid currently below the Mortgage Rate, the
excess, if any, of (a) interest
accrued on the Stated Principal Balance
thereof during the one-month interest
accrual period set forth in the related
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Mortgage Note at the related Mortgage Rate
over (b) the interest portion of the
related Monthly Payment or, if applicable,
Assumed Scheduled Payment due on such
Due Date.
"Mortgage File": With respect to any Mortgage Loan, but subject
to
Section 2.01, collectively the following
documents:
(i)
the original Mortgage Note, bearing, or accompanied by, all
prior and
intervening endorsements or assignments showing a complete
chain
of
endorsement or assignment from the originator of the Mortgage Loan
to
the
applicable Mortgage Loan Seller, and further endorsed (at the
direction
of the Depositor given pursuant to the applicable Mortgage Loan
Purchase
Agreement) by the Mortgage Loan Seller, on its face or by
allonge
attached
thereto, without recourse, to the order of the Trustee in the
following
form: "Pay to the order of _______, as trustee for the
registered
Holders of GE Commercial Mortgage Corporation, Commercial
Mortgage
Pass-Through Certificates, Series 200_-__, without recourse,
representation or warranty, express or implied";
(ii) the original Mortgage (or a certified copy thereof from
the
applicable
recording office) and originals (or certified copies from the
applicable
recording office) of any intervening assignments thereof
showing a
complete chain of assignment from the originator of the
Mortgage
Loan to
the applicable Mortgage Loan Seller, in each case with evidence
of
recording
indicated thereon;
(iii) an original (or a copy if the original has been sent by
the
Servicer
for recordation) assignment of the Mortgage, in recordable
form,
from the
Mortgage Loan Seller to "___________________, as trustee for
the
registered
Holders of GE Commercial Mortgage Corporation, Commercial
Mortgage
Pass-Through Certificates, Series 200_-__";
(iv) an original or copy of any related Assignment of Leases
(if
such item
is a document separate from the Mortgage) and the originals or
copies of
any intervening assignments thereof showing a complete chain of
assignment
from the originator of the Mortgage Loan to the Mortgage Loan
Seller, in
each case with evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if
such item
is a document separate from the Mortgage), in recordable form,
executed
by the applicable Mortgage Loan Seller to "__________, as
trustee
for the
registered holders of GE Commercial Mortgage Corporation,
Commercial
Mortgage Pass-Through Certificates, Series 200_-___";
(vi) an original or copy of any related Security Agreement (if
such
item is a
document separate from the Mortgage) and the originals or
copies
of any
intervening assignments thereof showing a complete chain of
assignment
from the originator of the Mortgage Loan to the Mortgage Loan
Seller;
(vii) an original assignment of any related Security Agreement
(if
such item
is a document separate from the Mortgage), in recordable form,
executed
by the applicable Mortgage Loan Seller to "__________, as
trustee
for the
registered holders of GE
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<PAGE>
Commercial
Mortgage Corporation, Commercial Mortgage Pass-Through
Certificates, Series 200_-___";
(viii) originals or copies of all assumption, modification,
written
assurance
and substitution agreements, with evidence of recording
thereon,
where
appropriate, in those instances where the terms or provisions of
the
Mortgage,
Mortgage Note or any related security document have been
modified
or the Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof
effective
as of the date of the recordation of the Mortgage Loan,
together
with all
endorsements or riders that were issued with or subsequent to
the
issuance
of such policy, insuring the priority of the Mortgage as a
first
lien on
the Mortgagor's fee interest in the Mortgaged Property, or if
the
policy has
not yet been issued, a written commitment or interim binder,
dated as
of the date the related Mortgage Loan was funded;
(x) the original or copy of any guaranty of the obligations of
the
Mortgagor
under the Mortgage Loan;
(xi) all UCC Financing Statements and continuation statements
or
copies
thereof sufficient to perfect (and maintain the perfection of)
the
security
interest held by the originator of the Mortgage Loan (and each
assignee
prior to the Trustee) in and to the personalty of the Mortgagor
at the
Mortgaged Property (in each case with evidence of filing
thereon),
and to
transfer such security interest to the Trustee;
(xii) the original power of attorney (with evidence of
recording
thereon)
granted by the Mortgagor if the Mortgage, Mortgage Note or
other
document
or instrument referred to above was not signed by the
Mortgagor;
(xiii) with respect to any Mortgage Loans with Affiliate Debt,
a
subordination agreement, pursuant to which such Affiliate Debt will
be
fully
subordinated to such Mortgage Loan;
(xiv) any additional documents required to be added to the
Mortgage
File
pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground
lease,
the
related ground lease; and
(xvi) the original of any Letters of credit securing such
Mortgage
Loan.
provided, however, that whenever the term
"Mortgage File" is used to refer to
documents actually received by the Trustee,
or a Custodian appointed thereby,
such term shall not be deemed to include
such documents and instruments required
to be included therein unless they are
actually so received.
"Mortgage Loan": Each of the mortgage loans transferred and
assigned
to the Trustee pursuant to Section 2.01 and
from time to time held in the Trust
Fund. As used herein,
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the term "Mortgage Loan" includes the
related Mortgage Note, Mortgage and other
documents contained in the related Mortgage
File and any related agreements.
"Mortgage Loan Purchase Agreement": Either of the agreements
between
the Depositor and each Mortgage Loan
Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title
and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred
on
the Closing Date to the Trustee as part of
the Trust Fund, attached hereto as
Exhibit B, which list sets forth the
following information with respect to each
Mortgage Loan:
(i) the loan i.d. number (as specified in Exhibit A to the
Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, state and zip code) of
the
related
Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term
to stated
maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due Date
following
the Cut-off Date;
(xi) the Original Value of the related Mortgaged Property;
(xii) the Loan-to-Value Ratio at the Cut-off Date;
(xiii) the Underwritten Debt Service Coverage Ratio;
(xiv) the applicable Servicing Fee Rate;
(xv) [whether the Mortgage Loan is an Actual/360 Mortgage
Loan;]
(xvi) [whether such Mortgage Loan has an Anticipated Prepayment
Date;]
(xvii) [the Revised Rate of such Mortgage Loan, if any; ]
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<PAGE>
(xviii) [whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;]
(xix) [identifying any Mortgage Loans with which such Mortgage
Loan
is
cross-defaulted or cross-collateralized;]
(xx) the originator of such Mortgage Loan;
(xxi) whether such Mortgage Loan has a guarantor;
(xxii) whether such Mortgage Loan is secured by a letter of
credit;
and
(xxiii) the applicable Loan Group, if any, to which such
Mortgage
Loan
belongs.
Such Mortgage Loan Schedule shall also set forth the aggregate
of
the amounts described under clause (vii)
above for all of the Mortgage Loans.
Such list may be in the form of more than
one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of (i) __________, a __________
corporation, and (ii)
_____________________, a __________corporation, or their
respective successors in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a
Mortgage Loan, together with any rider,
addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or
prior
to its Maturity Date, the annualized rate
at which interest is scheduled (in the
absence of a default) to accrue on such
Mortgage Loan from time to time in
accordance with the related Mortgage Note
and applicable law[, exclusive of the
Excess Rate]; (ii) any Mortgage Loan after
its Maturity Date, the annualized
rate described in clause (i) above
determined without regard to the passage of
such Maturity Date[; 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 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 Default
Interest [or Excess Interest]) in respect
of such Mortgage Loan during such one-month
period at the related Mortgage
Rate[; provided, however, that with respect
to each Interest Reserve Loan, the
Mortgage Rate for the one month period (A)
preceding the Due Dates that occur in
January and February in any year which is
not a leap year or preceding the Due
Date that occurs in February in any year
which is a leap year, and (B) preceding
the Due Date in March, will be the per
annum rate stated in the related Mortgage
Note] 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.
"Mortgaged Property": The real property subject to the lien of
a
Mortgage.
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"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.
"Net
Investment Earnings": With respect to either the Certificate
Account, the Distribution Accounts or the
REO Account for any period from any
Distribution Date to the immediately
succeeding P&I Advance Date, the amount, if
any, by which the aggregate of all interest
and other income realized during
such period on funds relating to the Trust
Fund held in such account, exceeds
the aggregate of all losses, if any,
incurred during such period in connection
with the investment of such funds in
accordance with Section 3.06.
"Net Investment Loss": With respect to either the Certificate
Account, the Distribution Accounts or the
REO Account for any period from any
Distribution Date to the immediately
succeeding P&I Advance Date, the amount by
which the aggregate of all losses, if any,
incurred during such period in
connection with the investment of funds
relating to the Trust Fund held in such
account in accordance with Section 3.06,
exceeds the aggregate of all interest
and other income realized during such
period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO
Loan,
as of any date of determination, a rate per
annum equal to the related Mortgage
Rate then in effect, minus the sum of (x)
the Servicing Fee Rate and (y) the
Trustee Fee Rate.
"Net Operating Income": With respect to any Mortgaged Property,
for
any Mortgagor's fiscal year end, the total
operating revenues derived from such
Mortgaged Property during such period,
minus the total operating expenses
incurred in respect of such Mortgaged
Property during such period and capital
expenditure reserves, other than (i)
non-cash items such as depreciation, (ii)
amortization, (iii) actual capital
expenditures and (iv) debt service on the
related Mortgage Loan.
"New Lease": Any lease of REO Property entered into at the
direction
of the Special Servicer on behalf of the
Trust, including any lease renewed,
modified or extended on behalf of the
Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Nonrecoverable
Advance": Any
Nonrecoverable
P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously
made or
proposed to be made in respect of a
Mortgage Loan or REO Loan which, in the
judgment of the Servicer, the Trustee or
the Fiscal Agent, as applicable, will
not be ultimately recoverable, together
with any accrued and unpaid interest
thereon, from Late Collections or any other
recovery on or in respect of such
Mortgage Loan or REO Loan. The
determination by the Servicer, the Trustee or the
Fiscal Agent, as applicable, that it has
made a Nonrecoverable P&I Advance or
that any proposed P&I Advance, if made,
would constitute a Nonrecoverable P&I
Advance, shall be evidenced by an Officer's
Certificate delivered to the
Trustee, the Paying Agent and the
Depositor, in the case of the Servicer or the
Fiscal Agent, and to the Depositor and the
Paying Agent, in the case of the
Trustee. The Officer's Certificate shall
set forth such determination of
nonrecoverability and the considerations of
the Servicer, the Trustee or Fiscal
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Agent, as applicable, forming the basis of
such determination (which shall
include but shall not be limited to
information, to the extent available, such
as related income and expense statements,
rent rolls, occupancy status, property
inspections, and shall include an Appraisal
of the related Mortgage Loan or
Mortgaged Property, the cost of which
Appraisal shall be advanced by the
Servicer as a Servicing Advance). The
Trustee shall be entitled to conclusively
rely on the Servicer's determination that a
P&I Advance is nonrecoverable and
the Fiscal Agent shall be entitled to
conclusively rely on the Servicer's and/or
Trustee's determination that a P&I
Advance is nonrecoverable.
"Nonrecoverable Servicing Advance": Any Servicing Advance
previously
made or proposed to be made in respect of a
Mortgage Loan or REO Property which,
in the judgment of the Servicer, the
Trustee or the Fiscal Agent, as the case
may be, will not be ultimately recoverable,
together with any accrued and unpaid
interest thereon, from Late Collections or
any other recovery on or in respect
of such Mortgage Loan or REO Property. The
determination by the Servicer, the
Trustee or the Fiscal Agent, as the case
may be, that it has made a
Nonrecoverable Servicing Advance or that
any proposed Servicing Advance, if
made, would constitute a Nonrecoverable
Servicing Advance, shall be evidenced by
an Officer's Certificate delivered to the
Trustee, the Paying Agent and the
Depositor, in the case of the Servicer and
the Fiscal Agent, and to the
Depositor and the Paying Agent, in the case
of the Trustee. The Officer's
Certificate shall set forth such
determination of nonrecoverability and the
considerations of the Servicer, the Trustee
or the Fiscal Agent, as applicable,
forming the basis of such determination
(which shall include but shall not be
limited to information, to the extent
available, such as related income and
expense statements, rent rolls, occupancy
status and property inspections, and
shall include an Appraisal of the related
Mortgage Loan or Mortgaged Property,
the cost of which Appraisal shall be
advanced by the Servicer as a Servicing
Advance). The Trustee will be entitled to
conclusively rely on the Servicer's
determination that a Servicing Advance is
nonrecoverable and the Fiscal Agent
shall be entitled to conclusively rely on
the Servicer's and/or the Trustee's
determination that a Servicing Advance is
nonrecoverable.
"Non-Registered Certificate": Unless and until registered under
the
Securities Act, any Class [F], Class [G],
Class [H], Class [R] or Class [LR]
Certificate.
"Non-U.S. Person": Any person other than a U.S. Person, unless,
with
respect to the Transfer of a Residual
Certificate, (i) such person holds such
Residual Certificate in connection with the
conduct of a trade or business
within the United States and furnishes the
Transferor and the Certificate
Registrar with an effective Internal
Revenue Service Form 4224 or (ii) the
Transferee delivers to both the Transferor
and the Certificate Registrar an
opinion of a nationally recognized tax
counsel to the effect that such Transfer
is in accordance with the requirements of
the Code and the regulations
promulgated thereunder and that such
Transfer of the Residual Certificate will
not be disregarded for federal income tax
purposes.
"Notional Amount": The Class [LWAC] Notional Amount, the A-1
Component Notional Amount or the WAC
Component Notional Amount, as the case may
be.
"Offered Certificates": The Class [A], Class [B], Class [C],
Class
[D], Class [E], Class [F], Class [G], Class
[H] and Class [X] Certificates.
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"Officer's Certificate": A certificate signed by a Servicing
Officer
of the Servicer or the Special Servicer, as
the case may be, or a Responsible
Officer of the Trustee or the Fiscal Agent,
as the case may be.
"Opinion of Counsel": A written opinion of counsel, who may,
without
limitation, be salaried counsel for the
Depositor, the Servicer or the Special
Servicer, acceptable in form and delivered
to the Trustee, except that any
opinion of counsel relating to (a) the
qualification of the Upper-Tier REMIC or
Lower-Tier REMIC as a REMIC, (b) compliance
with the REMIC Provisions, or (c)
the resignation of the Servicer, the
Special Servicer or the Depositor pursuant
to Section 6.04, must be an opinion of
counsel who is in fact Independent of the
Depositor, the Servicer or the Special
Servicer, as applicable.
"Option Price": As defined in Section 3.19(c).
"Original Certificate Balance": With respect to any Class of
Regular
Certificates (other than the Class [X]
Certificates), the initial aggregate
principal amount thereof as of the Closing
Date, in each case as specified in
the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class
of
Uncertificated Lower-Tier Interest (other
than the Class [LWAC] Uncertificated
Interest), the initial principal amount
thereof as of the Closing Date, in each
case as specified in the Preliminary
Statement.
"Original Notional Amount": With respect to the LWAC
Uncertificated
Interest, the A-1 Component or the WAC
Component, the respective initial
aggregate Notional Amount thereof as of the
Closing Date, in each case as
specified in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property
based
upon the Appraisal conducted in connection
with the origination of the related
Mortgage Loan.
"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.
"Pass-Through Rate": Any of the Class [A-1] Pass-Through Rate,
the
Class [A-1A] Pass-Through Rate, the Class
[A-2] Pass-Through Rate, the Class [B]
Pass-Through Rate, the Class [C]
Pass-Through Rate, the Class [D] Pass-Through
Rate, the Class [E] Pass-Through Rate, the
Class [F] Pass-Through Rate, the
Class [G] Pass-Through Rate, the Class [H]
Pass-Through Rate, the [A-1]
Component Pass-Through Rate and the WAC
Component Pass-Through Rate. [With
respect to the Class A-3FL Certificates (A)
for any Distribution Date on which a
Class A-3FL Distribution Conversion has not
occurred and is not continuing, a
per annum rate equal to the Class A-3FL
Pass-Through Rate and (B) for any
Distribution Date on which a Class A-3FL
Distribution Conversion has occurred
and is continuing, a per annum rate equal
to the pass-through rate of the Class
A-3FL Regular Interest. The Pass-Through
Rate of the Class A-3FL Regular
Interest is [_]% per annum.]
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"Paying Agent": Any agent of the Servicer appointed to act as
Paying
Agent pursuant to Section 5.06.
"PCAOB": The Public Company Accounting Oversight Board.
"Penalty Charges": With respect to any Mortgage Loan (or
successor
REO Loan), any amounts actually collected
thereon from the Mortgagor that
represent late payment charges or Default
Interest, other than a Prepayment
Premium, Yield Maintenance Charge [or
Excess Interest].
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions
required to be made with respect to
the related Class. With respect to any
Regular Certificate, the percentage
interest is equal to the Denomination of
such Certificate divided by the initial
Certificate Balance or Notional Amount, as
applicable, of such Class of
Certificates as of the Closing Date. With
respect to a Residual Certificate, the
percentage interest is set forth on the
face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities, regardless
whether issued by the Depositor, the
Servicer, the Special Servicer, the Trustee
or any of their respective
Affiliates and having the required ratings,
if any, provided for in this
definition:
(i) direct obligations of, and obligations fully guaranteed as
to
timely
payment of principal and interest by, the United States of
America,
FNMA,
FHLMC or any agency or instrumentality of the United States of
America,
the obligations of which are backed by the full faith and
credit
of the
United States of America; provided, that any obligation of, or
guarantee
by, FNMA or FHLMC, other than an unsecured senior debt
obligation
of FNMA or FHLMC, shall be a Permitted Investment only if such
investment would
not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to
any
Certificate as evidenced in writing;
(ii) demand and time deposits, certificates of deposit, or
bankers'
acceptances that mature in 1 year or less after the date of
issuance and
are issued
or held by any depository institution or trust company
incorporated or organized under the laws of the United States of
America
or any
State thereof and subject to supervision and examination by
federal
or state
banking authorities, so long as the commercial paper or other
short-term
debt obligations of such depository institution or trust
company
are rated at least "A-1+" by ___ and "D-1+" by ___ or would not
result in
the downgrading, withdrawal or qualification of the
then-current
rating
assigned by each Rating Agency to any Certificate or the
long-term
debt
obligations of such depository institution or trust company have
the
Certificate Rating;
(iii) repurchase agreements or obligations with respect to any
security
described in clause (i) above where such security has a
remaining
maturity
of 1 year or less and where such repurchase obligation has been
entered
into with a depository institution or trust company (acting as
principal)
described in clause (ii) above;
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(iv) debt obligations bearing interest or sold at a discount
issued
by any
corporation incorporated under the laws of the United States of
America or
any state thereof, which securities have ratings from ___ and
___ at
least equal to the highest long-term credit ratings assigned by
___
and ___,
unless otherwise specified in writing by each of the Rating
Agencies;
provided, however, that securities issued by any particular
corporation will not be Permitted Investments to the extent
that
investment
therein will cause the then-outstanding principal amount of
securities
issued by such corporation and held in the accounts established
hereunder
to exceed 10% of the sum of the aggregate principal balance and
the
aggregate principal amount of all Permitted Investments in such
accounts;
(v) commercial paper (including both non-interest-bearing
discount
obligations and interest-bearing obligations) payable on demand or
on a
specified
date maturing in 1 year or less after the date of issuance
thereof
and which is rated at least "A-1+" by ___ and "D-1+" by ___;
(vi) units of investment funds that maintain a constant net
asset
value,
including money market funds, rated "AAA" by ___ and in the
highest
category
by ___;
(vii) certificates or receipts representing ownership interests
in
future
interest or principal payments on obligations described in
clause
(i) above
and the Rating Agencies have confirmed in writing that such
investments will not lead to the downgrading, withdrawal or
qualification
of any
rating then assigned by the Rating Agencies to any Certificate;
and
(viii) any other demand, money market or time deposit,
obligation,
security
or investment, (a) with respect to which each Rating Agency
shall
have
confirmed in writing that such investment will not result in a
downgrade,
qualification or withdrawal of the then-current rating of the
Certificates that are currently being rated by such Rating Agency
and (b)
which
qualifies as a "cash flow investment" pursuant to Section
860G(a)(6)
of the
Code;
provided, however, that in each case, if
the investment is rated by ___, (a) it
shall not have an "r" highlighter affixed
to its rating from ___, (b) it shall
have a predetermined fixed dollar of
principal due at maturity that cannot vary
or change and (c) any such investment that
provides for a variable rate of
interest must have an interest rate that is
tied to a single interest rate index
plus a fixed spread, if any, and move
proportionately with such index; and
provided, further, however, that no such
instrument shall be a Permitted
Investment (a) if such instrument evidences
principal and interest payments
derived from obligations underlying such
instrument and the interest payments
with respect to such instrument provide a
yield to maturity at the time of
acquisition of greater than 120% of the
yield to maturity at par of such
underlying obligations or (b) if such
instrument may be redeemed at a price
below the purchase price; and provided,
further, however, that no amount
beneficially owned by either the Upper-Tier
REMIC or the Lower-Tier REMIC (even
if not yet deposited in the Trust) may be
invested in investments (other than
money market funds) treated as equity
interests for federal income tax purposes,
unless the Servicer receives an Opinion of
Counsel, at its own expense, to the
effect that such investment will not
adversely affect the status of either the
Upper-Tier REMIC or the Lower-Tier
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REMIC as a REMIC under the Code or result
in imposition of a tax on such
Upper-Tier REMIC or Lower-Tier REMIC.
Permitted Investments that are subject to
prepayment or call may not be purchased at
a price in excess of par.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture,
association, joint-stock company, trust,
unincorporated organization or government
or any agency or political subdivision
thereof.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance
made
by the Servicer, the Trustee or the Fiscal
Agent, as applicable, pursuant to
Section 4.03 or Section 7.05.
"P&I Advance
Date": The Business
Day immediately
prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any
Distribution
Date, the 14th day of the month in which
such Distribution Date occurs, or if
such 14th day is not a Business Day, the
Business Day immediately succeeding
such date.
"Placement
Agents":
Any of
(i) ___________
or (ii)
_______________.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A CPR (as defined in the Prospectus) of
0%
used for determining the accrual of
original issue discount, market discount and
premium, if any, on the Certificates for
federal income tax purposes.
"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.
"Principal Distribution Amount": With respect to any
Distribution
Date, an amount equal to the sum of (a) the
Principal Shortfall for such
Distribution Date, (b) the Scheduled
Principal Distribution Amount for such
Distribution Date and (c) the Unscheduled
Principal Distribution Amount for such
Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is
received in advance of its scheduled Due
Date and which is not 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.
"Principal Shortfall": For any Distribution Date after the
initial
Distribution Date, the amount, if any, by
which (a) the related Principal
Distribution Amount for the preceding
Distribution Date, exceeded (b) the
aggregate amount distributed in respect of
principal on the Class [A] [(other
than Class A-3FL)], Class [B], Class [C],
Class [D], Class [E], Class [F], Class
[G] and Class [H] Certificates [and the
Class A-3FL Regular Interest] for such
preceding Distribution Date pursuant to
Section 4.01(a) on such preceding
Distribution Date. The Principal Shortfall
for the initial Distribution Date
will be zero. Notwithstanding the
foregoing, for
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purposes of determining the Loan Group 1
Principal Distribution Amount or the
Loan Group 2 Principal Distribution Amount,
the Loan Group 1 Principal Shortfall
or the Loan Group 2 Principal Shortfall, as
applicable.
"Prospectus": The Prospectus dated ________, 200_, as
supplemented
by the Prospectus Supplement dated
__________, 200_, relating to the offering of
the Offered Certificates.
"Purchase Option": As defined in Section 3.19(c).
"Purchase Option Notice": As defined in Section 3.19(d).
"Purchase Price": With respect to any Mortgage Loan to be
purchased
by a Mortgage Loan Seller pursuant to
Section 3 of the related Mortgage Loan
Purchase Agreement, by the Servicer or the
Special Servicer pursuant to Section
3.18(b), or by the Servicer, the Special
Servicer, the Holders of the
Controlling Class or the Holders of the
Class [LR] Certificates pursuant to
Section 9.01 or to be otherwise sold
pursuant to Section 3.18(c), a price equal
to:
(ix) the outstanding principal balance of such Mortgage Loan as
of
the date
of purchase; plus
(x) all accrued and unpaid interest on such Mortgage Loan at
the
related
Mortgage Rate in effect from time to time to but not including
the
Due Date
in the Due Period of purchase; plus
(xi) all related unreimbursed Servicing Advances and accrued
and
unpaid
interest on related Advances at the Reimbursement Rate, and
unpaid
Special
Servicing Fees allocable to such Mortgage Loan; plus
(xii) if such Mortgage Loan is being purchased by a Mortgage
Loan
Seller
pursuant to Section 3 of the related Mortgage Loan Purchase
Agreement,
all reasonable out-of-pocket expenses reasonably incurred or to
be
incurred by the Servicer, the Special Servicer, the Depositor and
the
Trustee in
respect of the Breach or Defect giving rise to the repurchase
obligation, including any expenses arising out of the enforcement
of the
repurchase
obligation.
With respect to any REO Property to be sold
pursuant to Section 3.18(c), the
amount calculated in accordance with the
preceding sentence in respect of the
related REO Loan.
"Qualified Institutional Buyer": As defined in Section 5.02(b).
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO
Loan
or REO Property, an insurance company or
security or bonding company qualified
to write the related Insurance Policy in
the relevant jurisdiction with a
minimum claims paying ability rating of at
least "A" by ___ and ___, or, if not
rated by ___, at least "A" or its
equivalent by two other nationally recognized
statistical rating agencies 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
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<PAGE>
insurance company that has a claims paying
ability rated no lower than two
ratings below the rating assigned to the
then highest rated outstanding
Certificate, but in no event lower than "A"
by ___ and ___, 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 Mortgage
File; (ix) have an original Debt
Service Coverage Ratio of not less than the
original Debt Service Coverage Ratio
of the deleted Mortgage Loan and a current
Debt Service Coverage Ratio of not
less than the current Debt Service Coverage
Ratio 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
three 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 applicable 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 Directing
Certificateholder; provided that the
Directing Certificateholder shall cease to
have the right to approve the substitution
of a Qualified Substitute Mortgage
Loan for a deleted Mortgage Loan after the
aggregate of the outstanding
principal balance of all Qualified
Substitute Mortgage Loans which were
previously substituted for a deleted
Mortgage Loan exceeds 10% of the aggregate
principal balance of all Mortgage Loans as
of the Cut-off Date; and (xv) not be
substituted for a deleted Mortgage Loan if
it would result in the termination of
the REMIC status of any of the REMICs
established under this Agreement or the
imposition of tax on any 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. 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
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<PAGE>
(v) above shall be determined on a weighted
average basis. 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. It is understood and agreed
that the Controlling Class
Representative (or, if no Controlling Class
Representative is then serving, the
Holders of Certificates representing a
majority of the Voting Rights assigned to
the Controlling Class) could find a
prospective Qualified Substitute Mortgage
Loan unacceptable for any reason or no
reason whatsoever.]
"Rated Final Distribution Date": As to each Class of
Certificates,________ __, 20__, 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.
"Rating Agency": Each of ___ and ___ or their successors in
interest. If neither such rating agency nor
any successor remains in existence,
"Rating Agency" 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 and the
Servicer, and specific ratings of ___ and
___ herein referenced shall be deemed
to refer to the equivalent ratings of the
party so designated.
["Rating Agency Trigger Event": The reduction of the Class
A-3FL
Swap Counterparty's long-term ratings (or
if not rated by [specify agencies],
the long-term ratings of the credit support
provider of the Class A-3FL Swap
Counterparty) below [specify rating] by
[specify agency] or [specify rating] by
[specify agency].]
"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.
"Registrar Office": As
defined in Section 5.02(a).
"Regular Certificate":
Any of the
Class [A] [(other than Class
A-3FL)], Class [B], Class [C], Class [D], Class [E], Class [F], Class [G],
Class [H] and Class [X] Certificates.
"Reimbursement Rate": The rate per annum applicable to the
accrual
of interest on Servicing Advances in
accordance with Section 3.03(d) and P&I
Advances in accordance with Section
4.03(d), which rate per annum shall equal
the "Prime Rate" published in the "Money
Rates" section of The Wall Street
Journal (or, if such section or publication
is no longer available, such other
comparable publication as determined by the
Trustee in its reasonable
discretion) as may be in effect from time
to time, or, if the "Prime Rate" no
longer exists, such other comparable rate
(as determined by the Trustee in its
reasonable discretion) as may be in effect
from time to time.
"Related Certificates" and "Related Uncertificated Lower-Tier
Interest": For the following Classes of
Uncertificated Lower-Tier Interests, the
related Class of Certificates (in the case
of the Class A-3FL Certificates, the
Class A-3FL Regular Interest) set forth
below and for the following Classes of
Certificates (in the case of the Class
A-3FL Certificates, the Class A-3FL
Regular Interest), the related Class of
Uncertificated Lower-Tier Interests set
forth below:
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Related Uncertificated
Related Certificate
Lower-Tier Interest
-------------------
-------------------
Class [A-1] Certificate Class [LA-1]
Uncertificated Interest
Class [A-1A] Certificate Class [LA-1A]
Uncertificated Interest
Class [A-2] Certificate Class [LA-2]
Uncertificated Interest
[Class A-3FL Regular
[Class LA-3FL Uncertificated
Interest]
Interest]
Class [B] Certificate
Class [LB] Uncertificated Interest
Class [C] Certificate
Class [LC] Uncertificated Interest
Class [D] Certificate
Class [LD] Uncertificated Interest
Class [E] Certificate
Class [LE] Uncertificated Interest
Class [F] Certificate
Class [LF] Uncertificated Interest
Class [G] Certificate
Class [LG] Uncertificated Interest
Class [H] Certificate
Class [LH] Uncertificated Interest
"REMIC": A "real estate mortgage investment conduit" as defined
in
Section 860D of the Code (or any successor
thereto).
"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
rulings 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 custodial 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
registered Holders of GE Commercial Mortgage
Corporation, Commercial Mortgage
Pass-Through Certificates, Series 200_-__, REO
Account." Any such account or accounts
shall be an Eligible Account.
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"REO Acquisition": The date of acquisition for federal income
tax
purposes of any REO Property pursuant to
Section 3.09.
"REO Disposition": The sale or other disposition of the REO
Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO
Property. Each REO Loan shall be deemed to
be outstanding for so long as the related
REO Property remains part of the Trust
Fund as providing for Assumed Scheduled
Payments on each Due Date therefor, and
otherwise as having the same terms and
conditions as its predecessor Mortgage
Loan, including, without limitation, with
respect to the calculation of the
Mortgage Rate in effect from time to time
(such terms and conditions to be
applied without regard to the default on
such predecessor Mortgage Loan). Each
REO Loan shall be deemed to have an initial
outstanding principal balance and
Stated Principal Balance equal to the
outstanding principal balance and Stated
Principal Balance, respectively, of its
predecessor Mortgage Loan as of the date
of the related REO Acquisition. All amounts
due and owing in respect of the
predecessor Mortgage Loan as of the date of
the related REO Acquisition,
including, without limitation, accrued and
unpaid interest, shall continue to be
due and owing in respect of an REO Loan.
All amounts payable or reimbursable to
the Servicer, the Special Servicer, the
Fiscal Agent or the Trustee, as
applicable, in respect of the predecessor
Mortgage Loan as of the date of the
related REO Acquisition, including, without
limitation, any unpaid Special
Servicing Fees and Servicing Fees and any
unreimbursed Advances, together with
any interest accrued and payable to the
Servicer, the Fiscal Agent or the
Trustee in respect of such Advances in
accordance with Section 3.03(d) or
Section 4.03(d), shall continue to be
payable or reimbursable to the Servicer,
the Trustee or the Fiscal Agent in respect
of an REO Loan. Collections in
respect of each REO Loan (exclusive of
amounts to be applied to the payment of,
or to be reimbursed to the Servicer or the
Special Servicer for the payment of,
the costs of operating, managing and
maintaining the related REO Property) shall
be treated: first, as a recovery of accrued
and unpaid interest on such REO Loan
at the related Mortgage Rate in effect from
time to time to but not including
the Due Date in the Due Period of receipt
[(exclusive of any portion that
constitutes Excess Interest]; second, as a
recovery of principal of such REO
Loan to the extent of its entire unpaid
principal balance; and third, in
accordance with the Servicing Standards of
the 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
Charges and (ii) [Excess Interest] and
other amounts, in that order.
"REO Loan Accrual Period": With respect to any REO Loan and any
Due
Date therefor, the one-month period
immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of,
the Trustee for the benefit of the
Certificateholders and the Trustee (as
holder of the Uncertificated Lower-Tier
Interests [and the Class A-3FL Regular
Interest]) 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.
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"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO
Property.
"Reporting Servicer": The Servicer, the Special Servicer, [the
Trustee/Paying Agent] or a Servicing
Function Participant, as the case may be.
"Request for Release": A release signed by a Servicing Officer
of
the Servicer or the Special Servicer, as
applicable, in the form of Exhibit F
attached hereto.
"Residual Certificate": Any Class [R] Certificate or Class [LR]
Certificate issued, authenticated and
delivered hereunder.
"Responsible Officer": When used with respect to the initial
Trustee
or Fiscal Agent, any Vice President,
Assistant Vice President, corporate trust
officer or assistant corporate trust
officer in the Asset-Backed Securities
Trust Services Group of _________________
or ________________, as the case may
be, and with respect to any successor
Trustee or Fiscal Agent, any officer or
assistant officer in the corporate trust
department of the Trustee or Fiscal
Agent, as the case may be, or any other
officer of the Trustee or Fiscal Agent
customarily performing functions similar to
those performed by any of the above
designated officers to whom a particular
matter is referred by the Trustee or
Fiscal Agent because of such officer's
knowledge of and familiarity with the
particular subject.
["Revised Rate": With respect to those Mortgage Loans on the
Mortgage Loan Schedule indicated as having
a revised rate, the increased
interest rate after the Anticipated
Prepayment Date (in the absence of a
default) for each applicable Mortgage Loan,
as calculated and as set forth in
the related Mortgage Loan.]
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date, the aggregate of the
principal portions of (a) all Monthly
Payments (excluding Balloon Payments) due
in respect of the Mortgage Loans
during or, if and to the extent not
previously received or advanced pursuant to
Section 4.03 in respect of a preceding
Distribution Date, prior to the related
Due Period, and all Assumed Scheduled
Payments for the related Due Period, in
each case to the extent either (i) paid by
the Mortgagor as of the Business Day
preceding the related P&I Advance Date
(and not previously distributed to
Certificateholders) or (ii) advanced by the
Servicer, the Trustee or the Fiscal
Agent, as applicable, pursuant to Section
4.03 in respect of such Distribution
Date, and (b) all Balloon Payments to the
extent received during the related Due
Period, and to the extent not included in
clause (a) above.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent
instrument, whether contained in the related
Mortgage or executed separately, creating
in favor of the holder of such
Mortgage a security interest in the
personal property constituting security for
repayment of such Mortgage Loan.
"Servicer": __________ (Attention: __________) and its successor
in
interest and assigns, or any successor
Servicer appointed as herein provided.
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"Servicing Account": The account or accounts created and
maintained
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary
"out
of pocket" costs and expenses (including
attorneys' fees and expenses and fees
of real estate brokers) incurred by the
Servicer in connection with the
servicing and administering of (a) a
Mortgage Loan in respect of which a
default, delinquency or other unanticipated
event has occurred or as to which a
default is reasonably foreseeable or (b) an
REO Property, including, but not
limited to, the cost of (i) compliance with
the Servicer's obligations set forth
in Section 3.03(c), (ii) the preservation,
restoration and protection of a
Mortgaged Property, (iii) obtaining any
Insurance and Condemnation Proceeds or
any Liquidation Proceeds of the nature
described in clauses (i) - (iv) of the
definition of "Liquidation Proceeds," (iv)
any enforcement or judicial
proceedings with respect to a Mortgaged
Property, including foreclosures, and
(v) the operation, leasing, management,
maintenance and liquidation of any REO
Property.
"Servicing Criteria": The criteria set forth in paragraph (d)
of
Item 1122 of Regulation AB of the 1933
Act.
"Servicing Fee": With respect to each Mortgage Loan and REO
Loan,
the fee payable to the Servicer pursuant to
the first paragraph of Section
3.11(a).
"Servicing Fee Rate": A rate equal to ___% per annum with respect
to
Mortgage Loans sold to the Depositor by
_____________________, and ___% per
annum with respect to Mortgage Loans sold
to the Depositor by
______________________, in each case
computed on the basis of the Stated
Principal Balance of the related Mortgage
Loan and for the same period for which
any related interest payment on the related
Mortgage Loan is computed.
"Servicing Function Participant": Any Person, other than the
Servicer and the Special Servicer, that is
performing activities that address
the Servicing Criteria, unless such
Person's activities relate only to 5% or
less of the Mortgage Loans.
"Servicing Officer": Any officer and/or employee of the 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 the
Servicer to the Trustee and the
Depositor on the Closing Date as such list
may be amended from time to time
thereafter.
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan,
the
occurrence of any of the following
events:
(xiii) a payment default shall have occurred on such Mortgage
Loan
at its
original maturity date, or if the maturity date of such
Mortgage
Loan has
been extended, a payment default occurs on such Mortgage Loan
at
its
extended maturity date or, in the case of a Balloon Payment,
such
payment is
more than 60 days delinquent and (i) the borrower has not
delivered
to the Servicer a written refinancing commitment reasonably
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satisfactory in form and substance to the Servicer or (ii) such
Balloon
Payment
has not been paid within 60 days of receiving such written
refinancing commitment; or
(xiv) any Monthly Payment (other than a Balloon Payment) is 60
days
or more
delinquent; or
(xv) the date upon which the Servicer determines that a payment
default
has occurred or is imminent and is not likely to be cured by
the
related
Mortgagor within 60 days; or
(xvi) the date upon which a decree or order of a court or agency
or
supervisory authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy,
insolvency
or similar law or the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshaling
of
assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs being entered against the related
Mortgagor;
provided,
that if such decree or order is discharged or stayed within 60
days of
being entered, such Mortgage Loan shall not be a Specially
Serviced
Mortgage Loan (and no Special Servicing Fees, Workout Fees or
Liquidation Fees will be payable with respect thereto); or
(xvii) the related Mortgagor shall consent to the appointment of
a
conservator or receiver or liquidator in any insolvency,
readjustment of
debt,
marshaling of assets and liabilities or similar proceedings of
or
relating
to such Mortgagor or of or relating to all or substantially all
of its
property; or
(xviii) the related Mortgagor shall admit in writing its
inability
to pay its
debts generally as they become due, file a petition to take
advantage
of any applicable insolvency or reorganization statute, make an
assignment
for the benefit of its creditors, or voluntarily suspend
payment of
its obligations; or
(xix) a default of which the Servicer has notice (other than a
failure by
such Mortgagor to pay principal or interest) and which in the
opinion of
the Servicer materially and adversely affects the interests of
the
Certificateholders has occurred and remained unremedied for the
applicable
grace period specified in such Mortgage Loan (or if no grace
period is
specified, 60 days); or
(xx) the Servicer has received notice of the foreclosure or
proposed
foreclosure of any lien on the related Mortgaged Property.
"Similar Law": As
defined in Section 5.02 (c).
"Special Servicer":
___________,
a ________,
or any successor
special servicer appointed as herein
provided.
"Special Servicing Fee": With respect to each Specially
Serviced
Mortgage Loan and REO Loan, the fee payable
to the Special Servicer pursuant to
the first paragraph of Section 3.11(b).
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"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan,
______% per annum computed on the
basis of the Stated Principal Balance of
the related Mortgage Loan and for the
same period for which any related interest
payment on the related Specially
Serviced Mortgage Loan is computed.
"Specially Serviced Mortgage Loan": As defined in Section
3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as
of
any date of determination, an amount equal
to (x) the Cut-off Date Principal
Balance of such Mortgage Loan, plus (y) any
Mortgage Deferred Interest added to
the principal balance of such Mortgage Loan
on or before the end of the
immediately preceding Due Period minus (z)
the sum of:
(xxi) the principal portion of each Monthly Payment due on such
Mortgage
Loan after the Cut-off Date, to the extent received from the
Mortgagor
or advanced by the Servicer and distributed to
Certificateholders on or before such date of determination;
(xxii) all Principal Prepayments received with respect to such
Mortgage
Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
(xxiii) the principal portion of all Insurance and Condemnation
Proceeds
and Liquidation Proceeds received with respect to such Mortgage
Loan after
the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination; and
(xxiv) any reduction in the outstanding principal balance of
such
Mortgage
Loan resulting from a Deficient Valuation that occurred prior
to
the end of
the Due Period for the most recent Distribution Date.
With respect to any REO Loan, as of any date of determination,
an
amount
equal to (x) the Stated Principal Balance of the predecessor
Mortgage
Loan as of the date of the related REO Acquisition, minus (y)
the
sum
of:
(xxv) the principal portion of any P&I Advance made with
respect to
the
predecessor Mortgage Loan on or after the date of the related
REO
Acquisition, to the extent distributed to Certificateholders on or
before
such date
of determination; and
(xxvi) the principal portion of all Insurance and Condemnation
Proceeds,
Liquidation Proceeds and REO Revenues received with respect to
such REO
Loan, to the extent distributed to Certificateholders on or
before
such date of determination.
A Mortgage Loan or an REO Loan shall be deemed to be part of
the
Trust Fund and to have an outstanding
Stated Principal Balance until the
Distribution Date on which the payments or
other proceeds, if any, received in
connection with a Liquidation Event in
respect thereof are to be (or, if no such
payments or other proceeds are received in
connection with such Liquidation
Event, would have been) distributed to
Certificateholders.
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"Subordinate Certificate": Any Class [B], Class [C], Class [D],
Class [E], Class [F], Class [G] or Class
[H] Certificate.
"Sub-Servicer": Any Person with which the Servicer or the
Special
Servicer has entered into a Sub-Servicing
Agreement.
"Sub-Servicing Agreement": The written contract between the
Servicer
or the Special Servicer, as the case may
be, and any Sub-Servicer relating to
servicing and administration of Mortgage
Loans as provided in Section 3.22.
["Substitution Shortfall Amount": With respect to a
substitution
pursuant to Section 2.03(b) hereof, an
amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan
being replaced calculated as of the date
of substitution over the Stated Principal
Balance of the related Qualified
Substitute Mortgage Loans as of the date of
substitution. In the event that one
or more Qualified Substitute Mortgage Loans
are substituted (at the same time)
for one or more deleted Mortgage Loans, the
Substitution Shortfall Amount shall
be determined as provided in the preceding
sentence on the basis of the
aggregate Purchase Prices of the Mortgage
Loan or Mortgage Loans being replaced
and the aggregate Stated Principal Balances
of the related Qualified Substitute
Mortgage or Mortgage Loans.]
"Tax Returns": The federal income tax return on Internal
Revenue
Service Form 1066, U.S. Real Estate
Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto,
Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss
Allocation, or any successor forms,
to be filed on behalf of each of the
Upper-Tier REMIC and the Lower-Tier REMIC
due to its classification as a REMIC under
the REMIC Provisions, together with
any and all other information, reports or
returns that may be required to be
furnished to the Certificateholders or
filed with the Internal Revenue Service
or any other governmental taxing authority
under any applicable provisions of
federal, state or local tax laws.
"Third Party Appraiser": As defined in Section 3.19(e).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment
of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any
Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered
hereunder.
"Trust Fund": The segregated pool of assets subject hereto,
constituting the Trust, consisting of: (i)
the Mortgage Loans as from time to
time are subject to this Agreement and
all
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payments under and proceeds of such
Mortgage Loans received after the Cut-off
Date (other than payments of principal and
interest due and payable on such
Mortgage Loans on or before the Cut-off
Date), together with all documents
included in the related Mortgage Files;
(ii) such funds or assets as from time
to time are deposited in the Certificate
Account, the Distribution Accounts, any
Servicing Accounts, and, if established,
the REO Account; (iii) any REO
Property; (iv) the rights of the mortgagee
under all Insurance Policies with
respect to the Mortgage Loans; (v) the
rights of the Depositor under Sections
[2, 3, 9, 11 and 13] of the Mortgage Loan
Purchase Agreements; (vi) the
Uncertificated Lower-Tier Interests [, and
(vii) the Class A-3FL Regular
Interest, the Class A-3FL Swap Contract and
the Class A-3FL Floating Rate
Account].
"Trustee": ______________, a national banking association, in
its
capacity as trustee and its successors in
interest, or any successor trustee
appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(e).
"Trustee Fee": The fee to be paid to the Trustee as compensation
for
the Trustee's activities under this
Agreement.
"Trustee Fee Rate": A rate equal to ______% per annum computed
on
the basis of the Stated Principal Balance
of the related Mortgage Loan.
"UCC": The Uniform Commercial Code, as enacted in each
applicable
state.
"UCC Financing Statement": A financing statement executed and
filed
pursuant to the UCC, as in effect in the
relevant jurisdiction.
"Uncertificated Lower-Tier Interests": Any of the Class [LA-1],
Class [LA-1A], Class [LA-2], [Class
LA-3FL,], Class [LB], Class [LC], Class
[LD], Class [LE], Class [LF], Class [LG],
Class [LH] and Class [LWAC]
Uncertificated Interests.
"Underwriter": Either of (i) __________ or (ii)_____________.
"Underwritten Debt Service Coverage Ratio": With respect to any
Mortgage Loan, the ratio of (i)
Underwritten Net Cash Flow produced by the
related Mortgaged Property to (ii) the
aggregate amount of the Monthly Payments
due for the 12-month period immediately
following the Cut-off Date (except with
respect to those Mortgage Loans identified
on Schedule 4 where Monthly Payments
initially pay interest only, but, for
purposes of this definition only, shall be
assumed to include principal (based upon a
25-year amortization schedule) and
interest payments from origination).
"Underwritten Net Cash Flow": With respect to any Mortgage Loan,
the
estimated annual revenue derived from the
use and operation of such Mortgaged
Property, less estimated annual expenses,
including operating expenses (such as
utilities, administrative expenses, repairs
and maintenance, management fees and
advertising), fixed expenses (such as
insurance and real estate taxes) and
replacement reserves.
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<PAGE>
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration
of such property is not fully
reimbursable by the hazard insurance
policies or flood insurance policies
required to be maintained pursuant to
Section 3.07.
"Unscheduled Principal Distribution Amount": With respect to
any
Distribution Date, the aggregate of:
(a) all Principal Prepayments received on the Mortgage Loans
during
the related Due Period; and
(b) the principal portions of all Liquidation Proceeds,
Insurance
and Condemnation Proceeds and, if
applicable, REO Revenues received with respect
to the Mortgage Loans and any REO Loans
during the related Due Period, but in
each case only to the extent that such
principal portion represents a recovery
of principal for which no advance was
previously made pursuant to Section 4.03
in respect of a preceding Distribution
Date.
"Upper-Tier Distribution Account": The segregated account or
accounts created and maintained by the
Paying Agent pursuant to Section 3.04(b)
in trust for the Certificateholders, which
shall be entitled
"___________________________, as Paying
Agent, in trust for the registered
Holders of GE Commercial Mortgage
Corporation, Commercial Mortgage Pass-Through
Certificates, Series 200_-__, Upper-Tier
Distribution Account." Any such account
or accounts shall be an Eligible
Account.
"Upper-Tier REMIC": One of the two separate REMICs comprising
the
Trust Fund, the assets of which consist of
the Uncertificated Lower-Tier
Interests and such amounts as shall from
time to time be held in the Upper-Tier
Distribution Account.
"U.S. Person": A citizen or resident of the United States, a
corporation, partnership or other entity
created or organized in, or under the
laws of, the United States or any political
subdivision thereof, or an estate or
trust whose income is subject to United
States federal income tax regardless of
its source.
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any
Certificate. At all times during the term
of this Agreement, the Voting Rights shall
be allocated among the various
Classes of Certificateholders as follows:
(i) [4%] in the case of the Class [X]
Certificates, and (ii) in the case of any
other Class of Regular Certificates a
percentage equal to the product of [96%]
and a fraction, the numerator of which
is equal to the aggregate Certificate
Balance of such Class, in each case,
determined as of the Distribution Date
immediately preceding such time, and the
denominator of which is equal to the
aggregate Certificate Balance of the
Regular Certificates, each determined as of
the Distribution Date immediately
preceding such time. Neither the Class [R]
Certificates nor the Class [LR]
Certificates will be entitled to any Voting
Rights. For purposes of determining
Voting Rights, the Certificate Balance of
any Class shall be deemed to be
reduced by the amount allocated to such
Class of any Appraisal Reductions
related to Mortgage Loans as to which
Liquidation Proceeds or other final
payment has not yet been received. Voting
Rights allocated to a Class of
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Certificateholders shall be allocated among
such Certificateholders in
proportion to the Percentage Interests
evidenced by their respective
Certificates.
"WAC Component": One of the two components comprising the Class
[X]
Certificates, representing a "specified
portion" (within the meaning of Treasury
Regulations Section 1.860G-(1)(a)(2)(i)(C))
of the interest payments on the
Class [LWAC] Uncertificated Interest.
"WAC Component Interest Accrual Amount": With respect to each
Distribution Date, 100% of the interest
payable on the Class [LWAC]
Uncertificated Interest, equal to the WAC
Component Pass-Through Rate multiplied
by the WAC Component Notional Amount.
"WAC Component Notional Amount": With respect to any
Distribution
Date, an amount equal to the Class [LWAC]
Notional Amount.
"WAC Component Pass-Through Rate": A rate equal to the excess,
if
any, of (i) the Weighted Average Net
Mortgage Rate with respect to such
Distribution Date of the Mortgage Loans
over (ii) ____ %.
"Weighted Average Net Mortgage Rate": The weighted average of
the
applicable Net Mortgage Rates of the
Mortgage Loans, weighted on the basis of
their respective Stated Principal Balances
as of the preceding Distribution Date
(after giving effect to the distribution of
principal on such Distribution
Date), or, in the case of the first
Distribution Date, the Cut-off Date.
"Withheld Amounts": As defined in Section 3.25(a).
"Workout Fee": The fee paid to the Special Servicer with respect
to
each Corrected Mortgage Loan.
"Workout Fee Rate": A fee of ___% of each collection of interest
and
principal, including (i) Monthly Payments,
(ii) Balloon Payments and (iii)
payments (other than those included in
clause (i) or (ii) of this definition) at
maturity, received on each Corrected
Mortgage Loan for so long as it remains a
Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan,
the
yield maintenance charge set forth in the
related Mortgage Loan Documents.
"Yield Rate": With respect to any Mortgage Loan, the yield rate
set
forth in the related Mortgage Loan
documents.
Section 1.02 Certain Calculations.
Unless otherwise specified herein, for purposes of determining
amounts with respect to the Certificates
and the rights and obligations of the
parties hereto, the following provisions
shall apply:
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(i) All calculations of interest provided for herein shall be
made
on the
basis of a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the
date
such
payment is actually received by the Servicer, the Special Servicer
or
the
Trustee; provided, however, that for purposes of calculating
distributions on the Certificates, Principal Prepayments with
respect to
any
Mortgage Loan are deemed to be received on the date they are
applied
in
accordance with the Servicing Standards consistent with the terms
of
the
related Mortgage Note and Mortgage to reduce the outstanding
principal
balance of
such Mortgage Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates [or the Class A-3FL Regular Interest] on or as of
a
Distribution Date shall refer to the Certificate Balance of such
Class of
Certificates on such Distribution Date after giving effect to (a)
any
distributions made on such Distribution Date pursuant to Section
4.01, (b)
any
Collateral Support Deficit allocated to such Class on such
Distribution Date pursuant to Section 4.04 and (c) the addition of
any
Certificate Deferred Interest allocated to such Class of
Certificates [or
the Class
A-3FL Regular Interest] and added to such Certificate Balance
pursuant
to Section 4.06(b).
(iv) [For purposes of calculations required herein, Excess
Interest
shall not
be added to the outstanding principal balance of the Mortgage
Loans
notwithstanding that the related Loan Documents may provide
otherwise.]
[End of Article I]
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby assign, sell, transfer
and convey to the Trustee, without
recourse, for the benefit of the
Certificateholders and the Trustee (as holder
of the Uncertificated Lower-Tier Interests
[and Class A-3FL Regular Interest])
all the right, title and interest of the
Depositor, including any security
interest therein for the benefit of the
Depositor, in, to and under (i) the
Mortgage Loans identified on the Mortgage
Loan Schedule, (ii) Sections [2, 3, 9,
11, 13 and 16] of each of the Mortgage Loan
Purchase Agreements and (iii) all
other assets included or to be included in
the Trust Fund. Such assignment
includes all interest and principal
received or receivable on or with respect to
the Mortgage Loans (other than payments of
principal and interest due and
payable on the Mortgage Loans on or before
the Cut-off Date). The transfer of
the Mortgage Loans and the related rights
and property accomplished hereby is
absolute and, notwithstanding Section
11.07, is intended by the parties to
constitute a sale. In connection with the
assignment to the Trustee of Sections
[2, 3, 9, 11, 13 and 16] of each of the
Mortgage Loan Purchase Agreements, it is
intended that the Trustee get the benefit
of Sections [8, 10 and 12] thereof in
connection with any exercise of rights
under such assigned Sections, and the
Depositor shall use its best efforts to
make available to the Trustee the
benefits of Sections [8, 10 and 12] in
connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall
direct, and hereby represents and
warrants that it has directed, the Mortgage
Loan Sellers pursuant to each
Mortgage Loan Purchase Agreement to deliver
to and deposit with, or cause to be
delivered to and deposited with, the
Trustee or a Custodian appointed thereby,
on or before the Closing Date, the Mortgage
File for each Mortgage Loan so
assigned, with copies to the Servicer. If a
Mortgage Loan Seller cannot deliver,
or cause to be delivered as to any Mortgage
Loan, the original Mortgage Note,
such Mortgage Loan Seller shall deliver a
copy or duplicate original of such
Mortgage Note, together with an affidavit
certifying that the original thereof
has been lost or destroyed and indemnifying
the Trustee. If a Mortgage Loan
Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan, any of
the documents and/or instruments referred
to in clauses (ii), (iv), (vii),
(viii), (xi) and (xii) of the definition of
"Mortgage File," with evidence of
recording thereon, solely because of a
delay caused by the public recording
office where such document or instrument
has been delivered for recordation, the
delivery requirements of the related
Mortgage Loan Purchase Agreement and this
Section 2.01(b) shall be deemed to have
been satisfied on a provisional basis as
of the Closing Date as to such
non-delivered document or instrument, and such
non-delivered document or instrument shall
be deemed to have been included in
the Mortgage File, provided, that a
photocopy of such non-delivered document or
instrument (certified by such Mortgage Loan
Seller to be a true and complete
copy of the original thereof submitted for
recording) is delivered to the
Trustee or a Custodian appointed thereby on
or before the Closing Date, and
either the original of such non-delivered
document or instrument, or a photocopy
thereof (certified by the appropriate
county recorder's office, in the case of
the documents and/or instruments referred
to
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in clause (ii) of the definition of
"Mortgage File," to be a true and complete
copy of the original thereof submitted for
recording), with evidence of
recording thereon, is delivered to the
Trustee or such Custodian within 180 days
of the Closing Date (or within such longer
period after the Closing Date as the
Trustee may consent to, which consent shall
not be unreasonably withheld so long
as such Mortgage Loan Seller is, as
certified in writing to the Trustee no less
often than every 90 days, in good faith
attempting to obtain from the
appropriate county recorder's office such
original or photocopy). If a Mortgage
Loan Seller cannot deliver, or cause to be
delivered, as to any Mortgage Loan,
any of the documents and/or instruments
referred to in clauses (ii), (iv), (vi),
(vii), (viii), (xi) and (xii) of the
definition of "Mortgage File," with
evidence of recording thereon, for any
other reason, including, without
limitation, that such non-delivered
document or instrument has been lost, the
delivery requirements of the related
Mortgage Loan Purchase Agreement and this
Section 2.01(b) shall be deemed to have
been satisfied as to such non-delivered
document or instrument, and such
non-delivered document or instrument shall be
deemed to have been included in the
Mortgage File, provided, that a photocopy of
such non-delivered document or instrument
(with evidence of recording thereon
and certified in the case of the documents
and/or instruments referred to in
clause (ii) of the definition of "Mortgage
File" by the appropriate county
recorder's office to be a true and complete
copy of the original thereof
submitted for recording) is delivered to
the Trustee or a Custodian appointed
thereby on or before the Closing Date.
Neither the Trustee nor any Custodian
shall in any way be liable for any failure
by any Mortgage Loan Seller or the
Depositor to comply with the delivery
requirements of the Mortgage Loan Purchase
Agreements and this Section 2.01(b). If, on
the Closing Date as to any Mortgage,
Loan, the applicable Mortgage Loan Seller
cannot deliver in complete and
recordable form any one of the assignments
in favor of the Trustee referred to
in clauses (iii), (v), (vii) or (xi) of the
definition of "Mortgage File" solely
because of the unavailability of recording
information as to any existing
document or instrument, such Mortgage Loan
Seller may provisionally satisfy the
delivery requirements of the related
Mortgage Loan Purchase Agreement and this
Section 2.01(b) by delivering with respect
to such Mortgage Loan on the Closing
Date an omnibus assignment of such Mortgage
Loan substantially in the form of
Exhibit I; provided that all required
original assignments with respect to such
Mortgage Loan, in fully complete and
recordable form, are delivered to the
Trustee or its Custodian within 180 days of
the Closing Date (or within such
longer period as the Trustee in its
discretion may permit). Notwithstanding
anything herein to the contrary, with
respect to the documents referred to in
clause (xvi) of the definition of Mortgage
File, the Servicer shall be permitted
to hold the original of such document in
trust on behalf of the Trustee in order
to draw on such letter of credit and the
applicable Mortgage Loan Seller shall
be deemed to have satisfied the delivery
requirements of the related Mortgage
Loan Purchase Agreement and this Section
2.01(b) by delivering with respect to
such document a copy thereof to the Trustee
together with an Officer's
Certificate of the Mortgage Loan Seller
certifying that such document has been
delivered to the Servicer. The applicable
Mortgage Loan Seller shall pay any
costs of assignment of such letter of
credit required in order for the Servicer
to draw on such letter of credit.
(c) Except under the circumstances provided for in the last
sentence
of this subsection (c), the applicable
Mortgage Loan Seller, or the Trustee, at
the related Mortgage Loan Seller's expense,
shall, as to each Mortgage Loan,
promptly (and in any event within 75 days
of the later of the Closing Date and
the Trustee's actual receipt of the related
documents) cause to be submitted for
recording or filing, as the case may be, in
the appropriate public office for
real
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property records or UCC Financing
Statements, as appropriate, each assignment to
the Trustee referred to in clauses (ii),
(iii), (iv), (v), (vii) and (xii) of
the definition of "Mortgage File" and each
UCC-1, UCC-2 and UCC-3 to the Trustee
referred to in clause (xi) of the
definition of "Mortgage File." Each such
assignment shall reflect that it should be
returned by the public recording
office to the Trustee or its designee
following recording, and each such UCC-1,
UCC-2 and UCC-3 shall reflect that the file
copy thereof should be returned to
the Trustee or its designee following
filing. If any such document or instrument
is determined to be incomplete or not to
meet the filing requirements of the
jurisdiction in which it is recorded or
filed, or is lost or returned unrecorded
or unfiled, as the case may be, because of
a defect therein, the Trustee shall
prepare or cause to be prepared at the
expense of the related Mortgage Loan
Seller a substitute therefor or cure such
defect, as the case may be, and
thereafter the Trustee shall upon receipt
thereof cause the same to be duly
recorded or filed, as appropriate.
Notwithstanding the foregoing, there shall be
no requirement to record any assignment to
the Trustee referred to in clause
(iii) or (v) of the definition of "Mortgage
File," or to file any UCC-1, UCC-2
or UCC-3 to the Trustee referred to in
clause (xi) of the definition of
"Mortgage File," in those jurisdictions
where, in the written opinion of local
counsel (which opinion shall not be an
expense of the Trust Fund) acceptable to
the Depositor and the Trustee, such
recordation and/or filing is not required to
protect the Trustee's interest in the
related Mortgage Loans against sale,
further assignment, satisfaction or
discharge by the related Mortgage Loan
Seller, the Servicer, the Special Servicer,
any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or any
Mortgage
Loan Seller's possession relating to the
Mortgage Loans (including financial
statements, operating statements and any
other information provided by the
respective Mortgagor from time to time)
that are not required to be a part of a
Mortgage File in accordance with the
definition thereof together with copies of
all documents in each Mortgage File shall
be delivered to the Servicer on or
before the Closing Date and shall be held
by the Servicer on behalf of the
Trustee in trust for the benefit of the
Certificateholders (and as holder of the
Uncertificated Lower-Tier Interests [and
Class A-3FL Regular Interest]).
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall
deliver, and hereby represents and
warrants that it has delivered, to the
Trustee and the Servicer, on or before
the Closing Date, a fully executed original
counterpart of each Mortgage Loan
Purchase Agreement, as in full force and
effect, without amendment or
modification, on the Closing Date.
(f) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all
events within three Business Days
after the Closing Date, each Mortgage Loan
Seller shall cause all funds on
deposit in escrow accounts maintained with
respect to the Mortgage Loans in the
name of such Mortgage Loan Seller or any
other name to be transferred to the
Servicer (or a Sub-Servicer) for deposit
into Servicing Accounts.
Section 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this
Agreement,
acknowledges receipt by it or a Custodian
on its behalf, subject to the
provisions of Section 2.01 and the further
review provided for in this Section
2.02 and to any exceptions noted on the
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Trustee Exception Report, of the documents
specified in clauses (i)-(v), (viii),
(ix) and (xiii) of the definition of
"Mortgage File" with respect to each
Mortgage Loan, of a fully executed original
counterpart of each Mortgage Loan
Purchase Agreement and of all other assets
included in the Trust Fund, in good
faith and without notice of any adverse
claim, and declares that it or a
Custodian on its behalf holds and will hold
such documents and the other
documents delivered or caused to be
delivered by the Mortgage Loan Seller
constituting the Mortgage Files, and that
it holds and will hold such other
assets included in the Trust Fund, in trust
for the exclusive use and benefit of
all present and future
Certificateholders.
(b) Within 60 days of the Closing Date, the Trustee or a
Custodian
on its behalf shall review each of the
Mortgage Loan documents delivered or
caused to be delivered by the Mortgage Loan
Seller constituting the Mortgage
Files; and, promptly following such review
(but in no event later than 90 days
after the Closing Date), the Trustee shall
certify in writing to each of the
Rating Agencies, the Depositor, the
Servicer, the Special Servicer, the
Directing Certificateholder (provided it
shall have identified itself, and
furnished to the Trustee a notice address
for the delivery of such certificate)
and each Mortgage Loan Seller that, as to
each Mortgage Loan listed in the
Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or any
Mortgage Loan specifically identified in
any exception report annexed thereto as
not being covered by such certification),
(i) all documents specified in clauses
(i) - (v), (viii), (ix), (xi), (xii),
(xiii) and (xvi) of the definition of
"Mortgage File" are in its possession, (ii)
all documents delivered or caused to
be delivered by the Mortgage Loan Sellers
constituting the Mortgage Files have
been reviewed by it or by a Custodian on
its behalf and appear regular on their
face and relate to such Mortgage Loan, and
(iii) based on such examination and
only as to the foregoing documents, the
information set forth in the Mortgage
Loan Schedule with respect to the items
specified in clauses (i), (ii), (iii)
(other than zip code), (iv), (vi),
(viii)(a) and (viii)(c) of the definition of
"Mortgage Loan Schedule" is correct. With
respect to each Mortgage Loan listed
on an exception report, the Trustee shall
specifically identify such Mortgage
Loan together with the nature of such
exception (in the form reasonably
acceptable to the Trustee and the Mortgage
Loan Seller and separating items
required to be in the Mortgage File but
never delivered from items which were
delivered by the Mortgage Loan Seller but
are out for recording and have not
been returned by the recorder's
office).
(c) The Trustee or a Custodian on its behalf shall review each
of
the Mortgage Loan documents received
thereby subsequent to the Closing Date;
and, on or about the first anniversary of
the Closing Date, the Trustee shall
certify in writing to each of the
Depositor, the Servicer, the Special Servicer
and each Mortgage Loan Seller that, as to
each Mortgage Loan listed on the
Mortgage Loan Schedule (other than any
Mortgage Loan as to which a Liquidation
Event has occurred or any Mortgage Loan
specifically identified in any exception
report annexed thereto as not being covered
by such certification), (i) all
documents specified in clauses (i) - (v),
(viii), (ix), (xi), (xii), (xiii) and
(xvi) of the definition of "Mortgage File"
are in its possession, (ii) it or a
Custodian on its behalf has received either
a recorded original of each of the
assignments specified in clause (iii) and,
insofar as an unrecorded original
thereof had been delivered or caused to be
delivered by the related Mortgage
Loan Seller, pursuant to clause (v) of the
definition of "Mortgage File" or a
copy of such recorded original certified by
the applicable public recording
office to be true and complete, (iii) all
Mortgage Loan documents received by it
or any Custodian have been reviewed by it
or by such Custodian on its behalf and
appear regular on their face and relate to
such Mortgage Loan and (iv) based on
the examinations referred to in
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subsection (b) above and this subsection
(c) and only as to the foregoing
documents, the information set forth in the
Mortgage Loan Schedule with respect
to the items specified in clauses (i),
(ii), (iii) (other than zip code), (iv),
(vi), (viii) (a) and (viii) (c) of the
definition of "Mortgage Loan Schedule" is
correct.
(d) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation
(i) to determine whether any of the
documents specified in clauses (iv) -
(viii), (x), (xiii), (xiv) and (xv) of the
definition of "Mortgage File" exist or are
required to be delivered by the
Depositor, the Mortgage Loan Sellers or any
other Person or (ii) to inspect,
review or examine any of the documents,
instruments, certificates or other
papers relating to the Mortgage Loans
delivered to it to determine that the same
are genuine, enforceable, sufficient to
perfect and maintain the perfection of a
security interest or appropriate for the
represented purpose or that they are
other than what they purport to be on their
face and, with respect to the
documents specified in clause (ix), whether
the insurance is effective as of the
date of the recordation, whether all
endorsements or riders issued are included
in the file or if the policy has not been
issued whether any acceptable
replacement document has been dated the
date of the related Mortgage Loan
funding.
(e) If, in the process of reviewing the Mortgage Files or at
any
time thereafter, the Trustee or any
Custodian finds any document or documents
constituting a part of a Mortgage File not
to have been properly executed or,
subject to Section 2.01(b), not to have
been delivered, to contain information
that does not conform in any material
respect with the corresponding information
set forth in the Mortgage Loan Schedule or
to be defective on its face (each, a
"Defect" in the related Mortgage File), the
Trustee shall promptly so notify the
Depositor, the Servicer, the Special
Servicer and the applicable Mortgage Loan
Seller (and in no event later than 90 days
after the Closing Date and every 90
days thereafter until November 1, 200_, and
annually thereafter), by providing a
written report (the "Trustee Exception
Report") setting forth for each affected
Mortgage Loan, with particularity, the
nature of such Defect.
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or
Substitution of Mortgage Loans for Defects in Mortgage
Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly
existing
and in
good standing under the laws of the State of Delaware, and the
Depositor
has taken all necessary corporate action to authorize the
execution,
delivery and performance of this Agreement by it, and has the
power and
authority to execute, deliver and perform this Agreement and
all
the
transactions contemplated hereby, including, but not limited to,
the
power and
authority to sell, assign and transfer the Mortgage Loans in
accordance
with this Agreement;
(ii) Assuming the due authorization, execution and delivery of
this
Agreement
by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and
binding
obligations of the Depositor, enforceable
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against
the Depositor in accordance with the terms of this Agreement,
except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement
of
creditors'
rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding
in equity
or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will
not
conflict
with any provisions of any law or regulations to which the
Depositor is subject, or
conflict with, result in a breach of or
constitute
a default under any of the terms, conditions or provisions of
the
certificate of incorporation or the by-laws of the Depositor or
any
indenture,
agreement or instrument to which the Depositor is a party or by
which it
is bound, or any order or decree applicable to the Depositor,
or
result in
the creation or imposition of any lien on any of the
Depositor's
assets or
property, which would materially and adversely affect the
ability of
the Depositor to carry out the transactions contemplated by
this
Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or
body
required
for the execution, delivery and performance by the Depositor of
this
Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any
court or by
or before any other
governmental agency or instrumentality which would
materially
and adversely affect the validity of the Mortgage Loans or the
ability of
the Depositor to carry out the transactions contemplated by
this
Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with
the
full right
to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have
been validly transferred to the Trust.
(b) If any Certificateholder, the Servicer, the Special Servicer
or
the Trustee discovers or receives notice of
a Defect in any Mortgage File or a
breach of any representation or warranty
set forth in, or required to be made
with respect to a Mortgage Loan by a
Mortgage Loan Seller pursuant to, the
related Mortgage Loan Purchase Agreement (a
"Breach"), which Defect or Breach,
as the case may be, materially and
adversely affects the value of any Mortgage
Loan or the interests of the
Certificateholders therein, such Certificateholder,
the Servicer, the Special Servicer or the
Trustee, as applicable, shall give
prompt written notice of such Defect or
Breach, as the case may be, to the
Depositor, the Servicer, the Special
Servicer, the Directing Certificateholder
and the related Mortgage Loan Seller and
shall request that such Mortgage Loan
Seller, not later than the earlier of 90
days from such Mortgage Loan Seller's
receipt of such notice or such Mortgage
Loan Seller's discovery of such Breach,
(i) cure such Defect or Breach, as the case
may be, in all material respects,
(ii) repurchase the affected Mortgage Loan
at the applicable Purchase Price or
in conformity with the related Mortgage
Loan Purchase Agreement or [(iii)
substitute a Qualified Substitute Mortgage
Loan for such affected Mortgage Loan
(provided that in no event shall any such
substitution occur later than the
second anniversary of the Closing Date) and
pay the Servicer for deposit into
the Certificate Account, any Substitution
Shortfall Amount in connection
therewith; provided, however, that if such
Breach and Defect is capable of being
cured but not within such 90-day period,
and the
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Mortgage Loan Seller has commenced and is
diligently proceeding with the cure of
such Breach or Defect within such 90-day
period, the Mortgage Loan Seller shall
have an additional 90 days to complete such
cure (or, failing such cure, to
repurchase the related Mortgage Loan or
substitute a Qualified Substitute
Mortgage Loan) and provided, further, that
with respect to such additional
90-day period the Mortgage Loan Seller
shall have delivered an Officer's
Certificate to the Rating Agencies and the
Trustee setting forth the reason such
Breach or Defect is not capable of being
cured within the initial 90-day period
and what actions the Mortgage Loan Seller
is pursuing in connection with the
cure thereof and stating that the Mortgage
Loan Seller anticipates that such
Breach or Defect will be cured within the
additional 90-day period]. Any Defect
or Breach which causes any Mortgage Loan
not to be a "qualified mortgage"
(within the meaning of Section 860G(a)(3)
of the Code, without regard to the
rule of Treasury Regulations Section
1.860G-2(f)(2) which causes a defective
Mortgage Loan to be treated as a qualified
mortgage) shall be deemed to
materially and adversely affect the
interest of Certificateholders therein and
such Mortgage Loan shall be repurchased
without regard to the extended cure
period described in the preceding sentence.
If the affected Mortgage Loan is to
be repurchased, the Trustee shall designate
the Certificate Account as the
account into which funds in the amount of
the Purchase Price are to be deposited
by wire transfer in the Certificate
Account.
(c) In connection with any repurchase of a Mortgage Loan
contemplated by this Section 2.03, the
Trustee, the Servicer and the Special
Servicer shall each tender to the
applicable Mortgage Loan Seller, upon delivery
to each of the Trustee, the Servicer and
the Special Servicer of a trust receipt
executed by such Mortgage Loan Seller, all
portions of the Mortgage File and
other documents pertaining to such Mortgage
Loan possessed by it, and each
document that constitutes a part of the
Mortgage File that was endorsed or
assigned to the Trustee shall be endorsed
or assigned, as the case may be, to
such Mortgage Loan Seller in the same
manner as provided in Section 3 of the
related Mortgage Loan Purchase
Agreement.
(d) Section 3 of each Mortgage Loan Purchase Agreement provides
the
sole remedy available to the
Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Defect
in a Mortgage File or any Breach of
any representation or warranty set forth in
or required to be made pursuant to
Section 2 of such Mortgage Loan Purchase
Agreement.
(e) The Trustee and the Special Servicer (in the case of
Specially
Serviced Mortgage Loans) shall, for the
benefit of the Certificateholders and
the Trustee (as holder of the
Uncertificated Lower-Tier Interests), enforce the
obligations of each Mortgage Loan Seller
under Section 3 of the Mortgage Loan
Purchase Agreements. Such enforcement,
including, without limitation, the legal
prosecution of claims, shall be carried out
in such form, to such extent and at
such time as the Trustee or the Special
Servicer, as the case may be, would
require were it, in its individual
capacity, the owner of the affected Mortgage
Loan(s). The Trustee and the Special
Servicer, as the case may be, shall be
reimbursed for the reasonable costs of such
enforcement: first, from a specific
recovery of costs, expenses or attorneys'
fees against the applicable Mortgage
Loan Seller; second, pursuant to Section
3.05(a)(vii) out of the related
Purchase Price, to the extent that such
expenses are a specific component
thereof; and third, if at the conclusion of
such enforcement action it is
determined that the amounts described in
clauses first and second are
insufficient, then pursuant to Section
3.05(a)(viii) out of general collections
on the Mortgage Loans on deposit in the
Certificate Account.
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Section 2.04 Execution of Certificates.
The Trustee hereby acknowledges the assignment to it of the
Mortgage
Loans and, subject to Sections 2.01 and
2.02, the delivery to it or a Custodian
on its behalf of the Mortgage Files and a
fully executed original counterpart of
each Mortgage Loan Purchase Agreement,
together with the assignment to it of all
other assets included in the Trust Fund.
Concurrently with such assignment and
delivery and in exchange therefor, the
Trustee (i) acknowledges the issuance of
the Uncertificated Lower-Tier Interests to
the Depositor and (ii) acknowledges
the authentication and delivery of the
Class [LR] Certificates to or upon the
order of the Depositor, in exchange for the
Mortgage Loans [(other than Excess
Interest)], receipt of which is hereby
acknowledged, and immediately thereafter,
the Trustee acknowledges that it has
executed and caused the Authenticating
Agent to authenticate and to deliver to or
upon the order of the Depositor, in
exchange for the Uncertificated Lower-Tier
Interests, the Regular Certificates
[(other than the Class A-3FL Certificates)]
and the Class [R] Certificates [and
the Class A-3FL Regular Interest], and the
Depositor hereby acknowledges the
receipt by it or its designees, of such
Certificates in authorized Denominations
[and the Class A-3FL Regular Interest]
evidencing the entire beneficial
ownership of the Upper-Tier REMIC. [The
Trustee acknowledges that, concurrently
with the assignment to the Trustee of the
Class A-3FL Regular Interest, and in
exchange therefor, the Trustee has executed
and has caused the Authenticating
Agent to deliver, to or upon the order of
the Depositor, the Class A-3FL
Certificates.]
[End of Article II]
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ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section
3.01 Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans.
(a) Each of the Servicer and the Special Servicer shall
diligently
service and administer the Mortgage Loans
it is obligated to service pursuant to
this Agreement on behalf of the Trust and
in the best interests of and for the
benefit of the Certificateholders and the
Trustee (as holder of the
Uncertificated Lower-Tier Interests [and
the Class A-3FL Regular Interest])
determined by the Servicer or the Special
Servicer, as the case may be, in its
good faith and reasonable judgment) in
accordance with applicable law, the terms
of this Agreement and the terms of the
respective Mortgage Loans and, to the
extent consistent with the foregoing, in
accordance with the higher of the
following standards of care: (1) in the
same manner in which, and with the same
care, skill, prudence and diligence with
which the Servicer or Special Servicer,
as the case may be, services and
administers similar mortgage loans for other
third-party portfolios, giving due
consideration to the customary and usual
standards of practice of prudent
institutional commercial and multifamily
mortgage lenders servicing their own
mortgage loans and (2) the same care,
skill, prudence and diligence with which
the Servicer or the Special Servicer,
as the case may be, services and
administers similar mortgage loans owned by the
Servicer or the Special Servicer, as the
case may be, if applicable, in either
case exercising reasonable business
judgment and acting in accordance with
applicable law, the terms of this
Agreement, the respective Mortgage Loans or
Specially Serviced Mortgage Loans, as
applicable, and with a view to the
maximization of timely recovery of
principal and interest on a net present value
basis on the Mortgage Loans or Specially
Serviced Mortgage Loans, as applicable,
and the best interests of the Trust and the
Certificateholders, as determined by
the Servicer or the Special Servicer, as
the case may be, in its reasonable
judgment, but without regard to: (i) any
relationship that the Servicer, the
Special Servicer or any Affiliate thereof
may have with any Mortgagor, any
Mortgage Loan Seller, or any other party to
this Agreement; (ii) the ownership
of any Certificate by the Servicer, the
Special Servicer or any Affiliate
thereof; (iii) the Servicer's or Special
Servicer's, as applicable, obligation
to make Advances; (iv) the Servicer's or
Special Servicer's, as the case may be,
right to receive compensation for its
services and reimbursement for its costs
hereunder or with respect to any particular
transaction and (v) the ownership,
servicing or management for others of any
other mortgage loans or mortgaged
properties (the foregoing, collectively
referred to as the "Servicing
Standards"). Without limiting the
foregoing, subject to Section 3.21, the
Special Servicer shall be obligated to
service and administer (i) any Mortgage
Loans as to which a Servicing Transfer
Event has occurred and is continuing (the
"Specially Serviced Mortgage Loans") and
(ii) any REO Properties; provided, that
the Servicer shall continue to receive
payments and make all calculations, and
prepare, or cause to be prepared, all
reports to the Certificateholders,
required hereunder with respect to the
Specially Serviced Mortgage Loans, except
for the reports specified herein as
prepared by the Special Servicer, as if no
Servicing Transfer Event had occurred and
with respect to the REO Properties
(and the related REO Loans) as if no REO
Acquisition had occurred, and to render
such incidental services with
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respect to such Specially Serviced Mortgage
Loans and REO Properties as are
specifically provided for herein; provided,
further, however, that the Servicer
shall not be liable for failure to comply
with such duties insofar as such
failure results from a failure of the
Special Servicer to provide sufficient
information to the Servicer to comply with
such duties or failure by the Special
Servicer to otherwise comply with its
obligations hereunder. Each Mortgage Loan
that becomes a Specially Serviced Mortgage
Loan shall continue as such until
satisfaction of the conditions specified in
Section 3.21(a). Without limiting
the foregoing, subject to Section 3.21, the
Servicer shall be obligated to
service and administer all Mortgage Loans
which are not Specially Serviced
Mortgage Loans; provided, that the Special
Servicer shall make the inspections,
use its reasonable best efforts to collect
the statements and shall prepare the
reports in respect of the related Mortgaged
Properties with respect to Specially
Serviced Mortgage Loans in accordance with
Section 3.12.
(b) Subject only to the Servicing Standards and the terms of
this
Agreement and of the respective Mortgage
Loans and applicable law, the Servicer
and the Special Servicer each shall have
full power and authority, acting alone,
to do or cause to be done any and all
things in connection with such servicing
and administration which it may deem
necessary or desirable. Without limiting
the generality of the foregoing, each of
the Servicer and the Special Servicer,
in its own name, is hereby authorized and
empowered by the Trustee and obligated
to execute and deliver, on behalf of the
Certificateholders and the Trustee or
any of them, with respect to each Mortgage
Loan it is obligated to service under
this Agreement (i) any and all financing
statements, continuation statements and
other documents or instruments necessary to
maintain the lien created by the
related Mortgage or other security document
in the related Mortgage File on the
related Mortgaged Property and related
collateral; (ii) subject to Section 3.20,
any and all modifications, waivers,
amendments or consents to or with respect to
any documents contained in the related
Mortgage File; and (iii) any and all
instruments of satisfaction or
cancellation, or of partial or full release or
discharge, and all other comparable
instruments. Subject to Section 3.10, the
Trustee shall furnish, or cause to be
furnished, to the Servicer or the Special
Servicer any powers of attorney and other
documents necessary or appropriate to
enable the Servicer or the Special
Servicer, as the case may be, to carry out
its servicing and administrative duties
hereunder; provided, however, that the
Trustee shall not be held liable for any
negligence with respect to, or misuse
of, any such power of attorney by the
Servicer or the Special Servicer.
(c) To the extent the Servicer is permitted pursuant to the terms
of
the related Mortgage Loan documents to
exercise its discretion with respect to
any action which requires a confirmation of
the Rating Agencies that such action
will not result in the downgrade,
withdrawal or qualification of the ratings of
any Class of Certificates, the Servicer
shall require the costs of such written
confirmation to be borne by the related
Mortgagor. To the extent the terms of
the related Mortgage Loan documents require
the Mortgagor to bear the costs of
any confirmation of the Rating Agencies
that an action will not result in the
downgrade, withdrawal or qualification of
the ratings of any Class of
Certificates, the Servicer shall not waive
the requirement that such costs and
expenses be borne by the related
Mortgagor.
(d) The relationship of each of the Servicer and the Special
Servicer to the Trustee under this
Agreement is intended by the parties to be
that of an independent contractor and not
that of a joint venturer, partner or
agent.
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(e) The Servicer (or the Special Servicer with respect to
Escrow
Payments held by the Special Servicer, if
any) shall, to the extent permitted by
the related Mortgage Loan documents and
consistent with the Servicing Standards,
permit Escrow Payments to be invested only
in Permitted Investments.
Section 3.02 Collection of Mortgage Loan Payments.
(a) Each of the Servicer and the Special Servicer shall make
reasonable efforts to collect all payments
called for under the terms and
provisions of the Mortgage Loans it is
obligated to service hereunder, and shall
follow such collection procedures as are
consistent with this Agreement
(including, without limitation, the
Servicing Standards)[, provided, that with
respect to the Mortgage Loans that have
Anticipated Prepayment Dates, so long as
the related Mortgagor is in compliance with
each provision of the related
Mortgage Loan documents, the Servicer and
Special Servicer (including the
Special Servicer and in its capacity as a
Certificateholder), shall not take any
enforcement action with respect to the
failure of the related Mortgagor to make
any payment of Excess Interest, other than
requests for collection, until the
maturity date of the related Mortgage Loan
or the outstanding principal balance
of such Mortgage Loan has been paid in
full; provided, that the Servicer or
Special Servicer, as the case may be, may
take action to enforce the Trust
Fund's right to apply excess cash flow to
principal in accordance with the terms
of the Loan Documents.] Consistent with the
foregoing, the Servicer or the
Special Servicer each may in its discretion
waive any Penalty Charge in
connection with any delinquent payment on a
Mortgage Loan it is obligated to
service hereunder.
(b) All amounts collected on any Mortgage Loan in the form of
payments from Mortgagors, Insurance and
Condemnation Proceeds or Liquidation
Proceeds with respect to any Mortgage Loan
shall be applied to amounts due and
owing under the related Mortgage Note and
Mortgage (including, without
limitation, for principal and accrued and
unpaid interest) in accordance with
the express provisions of the related
Mortgage Note and Mortgage and, in the
absence of such express provisions, shall
be applied (after reimbursement to the
Servicer, the Trustee and/or the Fiscal
Agent for any related Servicing Advances
and interest thereon as provided herein):
first, as a recovery of accrued and
unpaid interest on such Mortgage Loan at
the related Mortgage Rate in effect
from time to time to but not including the
Due Date in the Due Period of
receipt; second, as a recovery of principal
of such Mortgage Loan then due and
third, in accordance with the Servicing
Standards, as a recovery of any other
amounts due and owing on such Mortgage
Loan, including, without limitation,
Prepayment Premiums, Yield Maintenance
Charges, Penalty Charges [and Excess
Interest] and fourth, as a recovery of
principal of such Mortgage Loan to the
extent of its entire unpaid principal
balance. To the extent that such amounts
are paid by a party other than a Mortgagor,
such amounts shall be deemed to have
been paid in respect of a purchase of all
or part of the Mortgaged Property (in
the case of Insurance and Condemnation
Proceeds or Liquidation Proceeds) and
then paid by the Mortgagor under the
Mortgage Loan in accordance with the
preceding sentence. Amounts collected on
any REO Loan shall be deemed to be
applied in accordance with the definition
thereof.
(c) To the extent consistent with the terms of the Mortgage
Loans
and applicable law, the Servicer shall
apply all Insurance and Condemnation
Proceeds it receives on a day other than
the Due Date to amounts due and owing
under the related Mortgage Loan as if
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such Insurance and Condemnation Proceeds
were received on the Due Date
immediately succeeding the month in which
such Insurance and Condemnation
Proceeds were received.
(d) [In the event that the Servicer or Special Servicer
receives
Excess Interest in any Due Period, or
receives notice from the related Mortgagor
that the Servicer or Special Servicer will
be receiving Excess Interest in any
Due Period, the Servicer or Special
Servicer, as applicable, will promptly
notify the Paying Agent. Subject to the
provisions of Section 3.02(a) hereof,
neither the Servicer nor the Special
Servicer shall be responsible for any such
Excess Interest not collected after notice
from the related Mortgagor.]
Section 3.03 Collection of Taxes, Assessments and Similar
Items;
Servicing Accounts.
(a) The Servicer shall establish and maintain one or more
accounts
(the "Servicing Accounts"), into which all
Escrow Payments shall be deposited
and retained, and shall administer such
Servicing Accounts in accordance with
the Mortgage Loan documents. Amounts on
deposit in Servicing Accounts may only
be invested in accordance with the terms of
the related Mortgage Loan documents
or in Permitted Investments. Servicing
Accounts shall be Eligible Accounts.
Withdrawals of amounts so deposited from a
Servicing Account may be made only
to: (i) effect payment of items for which
Escrow Payments were collected and
comparable items; (ii) reimburse the
Servicer, the Trustee or the Fiscal Agent
for any Servicing Advances; (iii) refund to
Mortgagors any sums as may be
determined to be overages; (iv) pay
interest to Mortgagors on balances in the
Servicing Account, if required by
applicable law or the terms of the related
Mortgage Loan and as described below or, if
not so required, to the Servicer;
(v) withdraw amounts deposited in error or
(vi) clear and terminate the
Servicing Account at the termination of
this Agreement in accordance with
Section 9.01. As part of its servicing
duties, the Servicer shall pay or cause
to be paid to the Mortgagors interest on
funds in Servicing Accounts, to the
extent required by law or the terms of the
related Mortgage Loan.
(b) The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage
Loans, shall maintain accurate
records with respect to each related
Mortgaged Property reflecting the status of
real estate taxes, assessments and other
similar items that are or may become a
lien thereon and the status of insurance
premiums and any ground rents payable
in respect thereof. The Special Servicer,
in the case of REO Loans, and the
Servicer, in the case of all other Mortgage
Loans, shall use reasonable efforts
consistent with the Servicing Standard to
obtain, from time to time, all bills
for the payment of such items (including
renewal premiums) and shall effect
payment thereof from the REO Account or by
the Servicer as Servicing Advances
prior to the applicable penalty or
termination date and, in any event, prior to
the institution of foreclosure or similar
proceedings with respect to the
related Mortgaged Property for nonpayment
of such items, employing for such
purpose Escrow Payments (which shall be so
applied by the Servicer at the
written direction of the Special Servicer
in the case of REO Loans) as allowed
under the terms of the related Mortgage
Loan. The Servicer or, with respect to
any Mortgage Loan that is a Specially
Serviced Mortgage Loan, the Special
Servicer shall service and administer any
reserve accounts (including
monitoring, maintaining or changing the
amounts of required escrows) in
accordance with the terms of such Mortgage
Loan and the Servicing Standards. To
the extent that a Mortgage Loan does not
require a Mortgagor to escrow for the
payment of real estate taxes, assessments,
insurance premiums, ground rents (if
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applicable) and similar items, the Special
Servicer, in the case of REO Loans,
and the Servicer, in the case of all other
Mortgage Loans, shall use reasonable
efforts consistent with the Servicing
Standard to enforce the requirement of the
related Mortgage that the Mortgagor make
payments in respect of such items at
the time they first become due and, in any
event, prior to the institution of
foreclosure or similar proceedings with
respect to the related Mortgaged
Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all
Mortgage
Loans, the Servicer shall advance with
respect to each related Mortgaged
Property (including any REO Property) all
such funds as are necessary for the
purpose of effecting the payment of (i)
real estate taxes, assessments and other
similar items that are or may become a lien
thereon, (ii) ground rents (if
applicable) and (iii) premiums on Insurance
Policies, in each instance if and to
the extent Escrow Payments collected from
the related Mortgagor are insufficient
to pay such item when due and the related
Mortgagor has failed to pay such item
on a timely basis, and provided, however,
that the particular advance would not,
if made, constitute a Nonrecoverable
Servicing Advance and provided, further,
however, that with respect to the payment
of taxes and assessments, the Servicer
shall not be required to make such advance
until the earlier of five Business
Days after the Servicer has received
confirmation that such item has not been
paid or the date prior to the date after
which any penalty or interest would
accrue in respect of such taxes or
assessments. The Special Servicer shall give
the Servicer, the Trustee and the Fiscal
Agent not less than five Business Days'
notice before the date on which the
Servicer is requested to make any Servicing
Advance with respect to a given Mortgage
Loan or REO Property; provided,
however, that only two Business Days'
notice shall be required in respect of
Servicing Advances required to be made on
an urgent or emergency basis (which
may include, without limitation, Servicing
Advances required to make tax or
insurance payments). In addition, the
Special Servicer shall provide the
Servicer, the Trustee and the Fiscal Agent
with such information in its
possession as the Servicer, the Trustee or
the Fiscal Agent, as applicable, may
reasonably request to enable the Servicer,
the Trustee or the Fiscal Agent, as
applicable, to determine whether a
requested Servicing Advance would constitute
a Nonrecoverable Advance. All such advances
shall be reimbursable in the first
instance from related collections from the
Mortgagors and further as provided in
Section 3.05. No costs incurred by the
Servicer or the Special Servicer in
effecting the payment of real estate taxes,
assessments and, if applicable,
ground rents on or in respect of the
Mortgaged Properties shall, for purposes
hereof, including, without limitation,
calculating monthly distributions to
Certificateholders, be added to the unpaid
principal balances of the related
Mortgage Loans, notwithstanding that the
terms of such Mortgage Loans so permit.
The failure by the Servicer to make any
required Servicing Advance as and when
due shall constitute an Event of Default
under Section 7.01(a)(i) and, to the
extent the Trustee has knowledge that such
Servicing Advance is necessary, the
Trustee shall make such Servicing Advance
pursuant to Section 7.05. If the
Trustee fails to make such Servicing
Advance, to the extent the Fiscal Agent has
knowledge that such Servicing Advance is
necessary, the Fiscal Agent shall make
such Servicing Advance pursuant to Section
7.05.
(d) No more frequently than once per calendar month, the
Special
Servicer may require the Servicer, and the
Servicer shall be obligated, out of
the Servicer's own funds, to reimburse the
Special Servicer for any Servicing
Advances (other than Nonrecoverable
Servicing Advances) made by but not
previously reimbursed to the Special
Servicer, together with interest thereon at
the Reimbursement Rate from the date made
to, but not including, the date of
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reimbursement. Such reimbursement and any
accompanying payment of interest shall
be made within ten days of the request
therefor by wire transfer of immediately
available funds to an account designated by
the Special Servicer. Upon the
Servicer's reimbursement to the Special
Servicer of any Servicing Advance and
payment to the Special Servicer of interest
thereon, all in accordance with this
Section 3.03(d), the Servicer shall for all
purposes of this Agreement be deemed
to have made such Servicing Advance at the
same time as the Special Servicer
actually made such Servicing Advance, and
accordingly, the Servicer shall be
entitled to reimbursement for such
Servicing Advance, together with interest
thereon in accordance with Section 3.03(e)
below at the same time, in the same
manner and to the same extent as the
Servicer would otherwise have been entitled
if it had actually made such Servicing
Advance at the time the Special Servicer
did.
Notwithstanding anything to the contrary contained in any other
Section of this Agreement, if the Special
Servicer is required under this
Agreement (but subject to the following
paragraph) to make any Servicing Advance
but does not desire to do so, the Special
Servicer may, in its sole discretion,
request that the Servicer make such
Servicing Advance. Any such request shall be
made, in writing, in a timely manner that
does not adversely affect the
interests of any Certificateholder (and, in
any event, to the extent reasonably
practicable, at least five Business Days in
advance of the date on which the
subject Servicing Advance is to be made)
and shall be accompanied by such
information and documentation regarding the
subject Servicing Advance as the
Servicer may reasonably request; provided,
however, that the Special Servicer
shall not be entitled to make such a
request (other than for emergency advances)
more frequently than once per calendar
month (although such request may relate
to more than one Servicing Advance). The
Servicer shall have the obligation to
make any such Servicing Advance (other than
a Nonrecoverable Servicing Advance)
that it is so requested by the Special
Servicer to make, within five Business
Days of the Servicer's receipt of such
request. If the request is timely and
properly made, the Special Servicer shall
be relieved of any obligations with
respect to a Servicing Advance that it so
requests Servicer to make (regardless
of whether or not the Servicer shall make
such Servicing Advance). The Servicer
shall be entitled to reimbursement for any
Servicing Advance made by it at the
direction of the Special Servicer, together
with interest thereon in accordance
with Section 3.03(e) below at the same
time, in the same manner and to the same
extent as the Servicer is entitled with
respect to any other Servicing Advances
made thereby.
Notwithstanding the foregoing provisions of this Section
3.03(d),
the Servicer shall not be required to
reimburse the Special Servicer for, or to
make at the direction of the Special
Servicer, any Servicing Advance if the
Servicer determines in its reasonable, good
faith judgment that such Servicing
Advance, although not characterized by the
Special Servicer as a Nonrecoverable
Servicing Advance, is in fact an
Nonrecoverable Servicing Advance. The Servicer
shall notify the Special Servicer in
writing of such determination and, if
applicable, such Nonrecoverable Servicing
Advance shall be reimbursed to the
Special Servicer pursuant to Section
3.03(e) below.
(e) In connection with its recovery of any Servicing Advance out
of
the Certificate Account pursuant to Section
3.05(a), each of the Servicer, the
Trustee and the Fiscal Agent, as the case
may be, shall be entitled to receive,
out of any amounts then on deposit in the
Certificate Account, interest at the
Reimbursement Rate in effect from time to
time, accrued on
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the amount of such Servicing Advance from
the date made to, but not including,
the date of reimbursement. The Servicer
shall reimburse itself, the Trustee or
the Fiscal Agent, as the case may be, for
any outstanding Servicing Advance as
soon as practically possible after funds
available for such purpose are
deposited in the Certificate Account.
(f) To the extent an operations and maintenance plan is required
to
be established and executed pursuant to the
terms of a Mortgage Loan, the
Servicer shall request from the Mortgagor
written confirmation thereof within a
reasonable time after the later of the
Closing Date and the date as of which
such plan is required to be established or
completed. To the extent any repairs,
capital improvements, actions or
remediations are required to have been taken or
completed pursuant to the terms of the
Mortgage Loan, the Servicer shall request
from the Mortgagor written confirmation of
such actions and remediations within
a reasonable time after the later of the
Closing Date and the date as of which
such action or remediations are required to
be or to have been taken or
completed. To the extent a Mortgagor shall
fail to promptly respond to any
inquiry described in this Section 3.03(e),
the Servicer shall, in accordance
with the Servicing Standards, determine
whether the related Mortgagor has failed
to perform its obligations under the
related Mortgage Loan and report any such
failure to the Special Servicer within a
reasonable time after the later of
________, 200_ and the date as of which
such actions or remediations are
required to be or to have been taken or
completed.
Section 3.04 The
Certificate Account, the Lower-Tier and Upper-Tier
Distribution Accounts [and the Excess Interest
Distribution Account] [and the Class A-3FL Floating
Rate Account].
(a) The Servicer shall establish and maintain, or cause to be
established and maintained, a Certificate
Account in which the Servicer shall
deposit or cause to be deposited on a daily
basis (and in no event later than
the Business Day following receipt of
available funds), except as otherwise
specifically provided herein, the following
payments and collections received or
made by or on behalf of it subsequent to
the Cut-off Date (other than in respect
of principal and interest on the Mortgage
Loans due and payable on or before the
Cut-off Date, which payments shall be
delivered promptly to the appropriate
Mortgage Loan Seller or its designee and
other than any amounts received from
Mortgagors which are received in connection
with the purchase of defeasance
collateral), or payments (other than
Principal Prepayments) received by it on or
prior to the Cut-off Date but allocable to
a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest (including, without
limitation, Default Interest) on the Mortgage Loans (net of the
Servicing
Fees), including [Excess
Interest,] Penalty Charges, Prepayment Premiums
and Yield
Maintenance Charges;
(iii) all Insurance and Condemnation Proceeds and Liquidation
Proceeds
received in respect of any Mortgage Loan or REO Property (other
than
Liquidation Proceeds that are received in connection with the
purchase
by the Servicer, the Special Servicer, the Holders of the
Controlling Class, or the Holders of the Class [LR]
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Certificates of all the Mortgage Loans and any REO Properties in
the Trust
Fund and
that are to be deposited in the Lower-Tier Distribution Account
pursuant
to Section 9.01);
(iv) any amounts required to be transferred from the REO
Account
pursuant
to Section 3.16(c);
(v) any amounts required to be deposited by the Servicer pursuant
to
Section
3.06 in connection with losses incurred with respect to
Permitted
Investments of funds held in the Certificate Account; and
(vi) any amounts required to be deposited by the Servicer or
the
Special
Servicer pursuant to Section 3.07(b) in connection with losses
resulting
from a deductible clause in a blanket hazard or master single
interest
policy.
The foregoing requirements for deposit in the Certificate
Account
shall be exclusive, it being understood and
agreed that, without limiting the
generality of the foregoing, actual
payments from Mortgagors in the nature of
Escrow Payments, charges for beneficiary
statements or demands, assumption fees,
modification fees, extension fees or
amounts collected for Mortgagor checks
returned for insufficient funds need not be
deposited by the Servicer in the
Certificate Account. If the Servicer shall
deposit in the Certificate Account
any amount not required to be deposited
therein, it may at any time withdraw
such amount from the Certificate Account,
any provision herein to the contrary
notwithstanding. Assumption, extension and
modification fees actually received
from Mortgagors on Mortgage Loans or
Specially Serviced Mortgage Loans shall be
promptly delivered to the Special Servicer
as additional servicing compensation,
but only to the extent the payment of such
fees are in accordance with the
second paragraph of Section 3.11(b) and any
other terms hereof.
Upon receipt of any of the foregoing amounts in clauses
(i)-(iii)
above with respect to any Specially
Serviced Mortgage Loans, the Special
Servicer shall remit within 1 Business Day
such amounts to the Servicer for
deposit into the Certificate Account in
accordance with the second preceding
paragraph. Any such amounts received by the
Special Servicer with respect to an
REO Property shall be deposited by the
Special Servicer into the REO Account and
remitted to the Servicer for deposit into
the Certificate Account pursuant to
Section 3.16(c). With respect to any such
amounts paid by check to the order of
the Special Servicer, the Special Servicer
shall endorse without recourse or
warranty such check to the order of the
Servicer and shall promptly deliver any
such check to the Servicer by overnight
courier.
Funds in the Certificate Account may only be invested in
Permitted
Investments in accordance with the
provisions of Section 3.06. The Servicer
shall give notice to the Trustee, the
Special Servicer and the Depositor of the
location of the Certificate Account as of
the Closing Date and of the new
location of the Certificate Account prior
to any change thereof.
(b) The Paying Agent, on behalf of the Trustee for the benefit
of
the Certificateholders and the Trustee (as
holder of the Uncertificated
Lower-Tier Interests), shall establish and
maintain the Lower-Tier Distribution
Account, the Upper-Tier Distribution
Account, the [Excess Interest Distribution
Account] [, the Class A-3FL Floating Rate
Account] and [the Interest Reserve
Account] in trust for the benefit of the
Certificateholders and the
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Trustee (as holder of the Uncertificated
Lower-Tier Interests). The Trustee
hereby authorizes the Paying Agent to make
deposits in and withdrawals from the
Distribution Accounts in accordance with
the terms of this Agreement. The
Servicer shall deliver to the Paying Agent
each month on or before the P&I
Advance Date therein, for deposit in the
Lower-Tier Distribution Account, that
portion of the Available Distribution
Amount (calculated without regard to
clause (a)(iv), (a)(v), (a)(viii) and (c)
and (d) of the definition thereof) for
the related Distribution Date then on
deposit in the Certificate Account.
The Lower-Tier Distribution Account, the Upper-Tier
Distribution
Account, the [Excess Interest Distribution
Account] [, the Class A-3FL Floating
Rate Account] and the [Interest Reserve
Account] shall be maintained as
segregated accounts separate from other
accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account pursuant to
the second preceding paragraph, the
Servicer shall, as and when required
hereunder, deliver to the Paying Agent for
deposit in the Lower-Tier Distribution
Account:
(i) any amounts required to be deposited by the Servicer pursuant
to
Section 3.06 in connection with losses incurred with respect to
Permitted
Investments of funds held in the Lower-Tier Distribution
Account;
(ii) any P&I Advances required to be made by the Servicer
in
accordance
with Section 4.03;
(iii) any
Liquidation Proceeds paid by the Servicer, the Special
Servicer,
the Holders of the Controlling Class, the Holders of the Class
[LR]
Certificates or the Depositor in connection with the purchase of
all
of the
Mortgage Loans and any REO Properties in the Trust Fund pursuant
to
Section
9.01 (exclusive of that portion thereof required to be
deposited
in the
Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges or Prepayment Premiums; and
(v) any other amounts required to be so delivered for deposit in
the
Lower-Tier
Distribution Account pursuant to any provision of this
Agreement.
If, as of 4:00 p.m., New York City time, on any P&I Advance
Date or
on such other date as any amount referred
to in the foregoing clauses (i)
through (v) are required to be delivered
hereunder, the Servicer shall not have
delivered to the Paying Agent for deposit
in the Lower-Tier Distribution Account
[and the Excess Interest Distribution
Account] the amounts required to be
deposited therein pursuant to the
provisions of this Agreement, the Servicer
shall pay the Paying Agent interest on such
late payment at the Prime Rate from
the time such payment was required to be
made (without regards to any grace
period) until such late payment is received
by the Paying Agent.
The Paying Agent shall, upon receipt, deposit in the Lower-Tier
Distribution Account any and all amounts
received by the Paying Agent that are
required by the terms of this Agreement to
be deposited therein. In the event
the Trustee receives any amounts required
to be remitted to the Paying Agent or
the Lower-Tier Distribution Account
pursuant to the terms
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hereof, the Trustee shall remit such
amounts as soon as possible, but in no
event later than 1 Business Day following
receipt. The Trustee shall remit to
the Paying Agent for deposit in the
Lower-Tier Distribution Account any P&I
Advances required to be made by it or the
Fiscal Agent, as the case may be, in
accordance with Section 7.05.
Promptly on each Distribution Date, the Paying Agent shall
withdraw
from the Lower-Tier Distribution Account
and deposit in the Upper-Tier
Distribution Account an aggregate amount of
immediately available funds equal to
the Lower-Tier Distribution Amount and the
amount of any Prepayment Premiums and
Yield Maintenance Charges for such
Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as
specified in Sections 4.01(b) and
4.01(d), respectively.
Pursuant to Section 3.06, the Servicer shall deliver to the
Paying
Agent for deposit in the Upper-Tier
Distribution Account any amounts required to
be deposited therein in connection with
losses incurred with respect to
Permitted Investments of funds held in the
Upper-Tier Distribution Account.
Funds on deposit in the Upper-Tier Distribution Account, the
Lower-Tier Distribution Account [, the
Class A-3FL Floating Rate Account,]
and/or the Certificate Account may only be
invested in Permitted Investments in
accordance with the provisions of Section
3.06. As of the Closing Date, the
Certificate Account shall be located at the
offices of the Servicer. The
Servicer shall give notice to the Trustee,
the Paying Agent, the Special
Servicer and the Depositor of the location
of the Certificate Account and of any
new location of the Certificate Account
prior to any change thereof. As of the
Closing Date, [the Excess Interest
Distribution Account,] [, the Class A-3FL
Floating Rate Account,] the [Interest
Reserve Account,] the Upper-Tier
Distribution Account and the Lower-Tier
Distribution Account shall be located at
the offices of the Paying Agent. The Paying
Agent shall give notice to the
Trustee, the Servicer and the Depositor of
the new location of any of the
Distribution Accounts prior to any change
thereof.
(c) [Prior to any Collection Period during which Excess Interest
is
received, and upon notification from the
Servicer or Special Servicer pursuant
to Section 3.02(d), the Paying Agent, on
behalf of the Certificateholders, shall
establish and maintain the Excess Interest
Distribution Account in the name of
the Paying Agent in trust for the benefit
of the Class S Certificateholders. The
Excess Interest Distribution Account shall
be established and maintained as an
Eligible Account. Prior to the applicable
Distribution Date, the Servicer shall
remit to the Paying Agent for deposit in
the Excess Interest Distribution
Account an amount equal to the Excess
Interest received during the applicable
Collection Period.
Following the distribution of Excess Interest to Class S
Certificateholders on the first
Distribution Date after which there are no
longer any Mortgage Loans outstanding which
pursuant to their terms could pay
Excess Interest, the Paying Agent shall
terminate the Excess Interest
Distribution Account.]
(d) [On or before the Closing Date, the Trustee shall establish
and
maintain the Class A-3FL Floating Rate
Account in trust for the benefit of the
Class A-3FL Certificateholders and the
Class A-3FL Swap Counterparty. The Class
A-3FL Floating Rate
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Account shall (i) at all times be an
Eligible Account and (ii) relate solely to
the Class A-3FL Certificates and amounts
payable in respect of the Class A-3FL
Swap Contract.
The Trustee shall deposit into the Class A-3FL Floating Rate
Account
all amounts received in respect of
distributions on the Class A-3FL Regular
Interest as specified in Section 3.05(c),
and shall immediately deposit into the
Class A-3FL Floating Rate Account all
amounts received under the Class A-3FL
Swap Contract.]
Section 3.05 Permitted Withdrawals From the Certificate Account
and
the Distribution Accounts.
(a) The Servicer may, from time to time, make withdrawals from
the
Certificate Account for any of the
following purposes:
(i) to remit to the Paying Agent for deposit in the Lower-Tier
Distribution Account [and the Excess Interest Distribution Account]
the
amounts
required to be remitted pursuant to the first paragraph of
Section
3.04(b)
[and Section 3.04(c)] or that may be applied to make P&I
Advances
pursuant
to Section 4.03(a);
(ii) to pay (A) itself unpaid Servicing Fees and the Special
Servicer
unpaid Special Servicing Fees, Liquidation Fees and Workout
Fees
in respect
of each Mortgage Loan, Specially Serviced Mortgage Loan and REO
Loan, as
applicable, the Servicer's or Special Servicer's, as
applicable,
rights to
payment of Servicing Fees and Special Servicing Fees pursuant
to
this
clause (ii)(A) with respect to any Mortgage Loan, Specially
Serviced
Mortgage
Loan or REO Loan, as applicable, being limited to amounts
received
on or in respect of such Mortgage Loan (whether in the form of
payments,
Liquidation Proceeds or Insurance and Condemnation Proceeds) or
such REO
Loan (whether in the form of REO Revenues, Liquidation Proceeds
or
Insurance and Condemnation Proceeds) that are allocable as a
recovery
of
interest thereon and (B) to pay the Special Servicer any unpaid
Special
Servicing
Fees in respect of each Specially Serviced Loan or REO Loan, as
applicable, remaining unpaid out of general collections on the
Mortgage
Loans and
REO Properties;
(iii) to reimburse itself, the Trustee or the Fiscal Agent, as
applicable
(in reverse of such order with respect to any Mortgage Loan),
for
unreimbursed P&I Advances, the Servicer's, the Trustee's or the
Fiscal
Agent's
right to reimburse itself pursuant to this clause (iii) being
limited to
amounts received which represent Late Collections of interest
(net of
the related Servicing Fees) on and principal of the particular
Mortgage
Loans and REO Loans with respect to which such P&I Advances
were
made;
(iv) to reimburse itself, the Trustee or the Fiscal Agent, as
applicable
(in reverse of such order with respect to any Mortgage Loan or
REO
Property), for unreimbursed Servicing Advances, the Servicer's,
the
Trustee's
or the Fiscal Agent's respective rights to receive payment
pursuant
to this clause (iv) with respect to any Mortgage Loan or REO
Property
being limited to, as applicable, related payments, Liquidation
Proceeds,
Insurance and Condemnation Proceeds and REO Revenues;
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(v) to reimburse itself, the Trustee or the Fiscal Agent, as
applicable
(in reverse of such order with respect to any Mortgage Loan or
REO
Property), for Nonrecoverable Advances out of general collections
on
the Mortgage Loans and
REO Properties (to be allocated between the Loan
Groups as
set forth in the last paragraph of this Section 3.05(a)) or to
pay
itself, with respect to any Mortgage Loan or REO Property any
related
earned
Servicing Fee that remained unpaid in accordance with clause
(ii)
above
following a Final Recovery Determination made with respect to
such
Mortgage
Loan or REO Property and the deposit into the Certificate
Account
of all
amounts received in connection therewith;
(vi) at such time as it reimburses itself, the Trustee or the
Fiscal
Agent, as
applicable (in reverse of such order with respect to any
Mortgage
Loan or REO Property), for (a) any unreimbursed P&I Advance
pursuant
to clause (iii) above, to pay itself, the Trustee or the Fiscal
Agent, as
applicable, any interest accrued and payable thereon in
accordance
with Sections 4.03(d) and 3.11(c), (b) any unreimbursed
Servicing
Advances pursuant to clause (iv) above, to pay itself, the
Trustee or
the Fiscal Agent, as the case may be, any interest accrued and
payable
thereon in accordance with Sections 3.03(e) and 3.11(c) or (c)
any
Nonrecoverable Advances pursuant to clause (v) above, to pay
itself, the
Trustee or
the Fiscal Agent, as the case may be, any interest accrued and
payable
thereon;
(vii) to reimburse itself, the Special Servicer, the Depositor
or
the
Trustee, as the case may be, for any unreimbursed expenses
reasonably
incurred
by such Person in respect of any Breach or Defect giving rise
to
a
repurchase obligation of any Mortgage Loan Seller under Section 3
of the
related
Mortgage Loan Purchase Agreement, including, without
limitation,
any
expenses arising out of the enforcement of the repurchase
obligation,
each such
Person's right to reimbursement pursuant to this clause (vii)
with
respect to any Mortgage Loan being limited to that portion of
the
Purchase
Price paid for such Mortgage Loan that represents such expense
in
accordance
with clause (iv) of the definition of Purchase Price;
(viii) in accordance with Section 2.03(e), to reimburse itself
or
the
Trustee, as the case may be, out
