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_-_
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01 Defined
Terms....................................................4
Section 1.02 Certain
Calculations............................................52
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
-i-
<PAGE>
Page
----
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
-ii-
<PAGE>
Page
----
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.................162
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
-iii-
<PAGE>
Page
----
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 AND REGULATION AB COMPLIANCE
Section 12.01 Intent of the Parties;
Reasonableness..........................193
Section 12.02 Filing
Obligations.............................................193
Section 12.03 Form 10-D
Filings..............................................193
Section 12.04 Form 10-K
Filings..............................................194
Section 12.05 Sarbanes-Oxley
Certification...................................195
Section 12.06 Form 8-K
Filings...............................................196
Section 12.07 Form 15 Filing; Incomplete Exchange Act Filings;
Amendments to Exchange Act
Reports.............................197
Section 12.08 Annual Compliance
Statements...................................198
Section 12.09 Annual Reports on Assessment of Compliance with
Servicing
Criteria.............................................198
Section 12.10 Annual Independent Public Accountants' Servicing
Report........199
-iv-
<PAGE>
Page
----
Section 12.11 Exchange Act Reporting
Indemnification.........................200
Section 12.12
Amendments.....................................................201
-v-
<PAGE>
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
SCHEDULES
Schedule 1
Computerized Database Information
Schedule 2
Borrower Concentrations in Excess of 5%
Schedule 3
Relevant Servicing Criteria
Schedule 4
Additional 10-D Information
Schedule 5
Additional 10-K Information
Schedule 6
Additional 8-K Information
-vi-
<PAGE>
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.]
<PAGE>
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
-2-
<PAGE>
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
-3-
<PAGE>
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
-4-
<PAGE>
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 [specify sponsors]
that
Services any of the Mortgage Loans and each Person who is not an
Affiliate of
the [specify sponsors], 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
-5-
<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.
"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 report to the Paying Agent and the Trustee
the amount of
the Appraisal Reduction with respect to
-6-
<PAGE>
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);
-8-
<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 ____________, 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
-9-
<PAGE>
__________, 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.]
-12-
<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.
-14-
<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.
-15-
<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
-16-
<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
-17-
<PAGE>
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.
-18-
<PAGE>
"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).
-19-
<PAGE>
"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
-20-
<PAGE>
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).
-21-
<PAGE>
["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).
-22-
<PAGE>
"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.
-23-
<PAGE>
"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-."
-24-
<PAGE>
"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.]
-25-
<PAGE>
["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.
-26-
<PAGE>
"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, Commercial
-27-
<PAGE>
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 Mortgage Note at the
related
-28-
<PAGE>
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
-29-
<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,
-30-
<PAGE>
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; ]
-31-
<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.
-32-
<PAGE>
"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
-33-
<PAGE>
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.
-34-
<PAGE>
"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.]
-35-
<PAGE>
"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;
-36-
<PAGE>
(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
-37-
<PAGE>
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
-38-
<PAGE>
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
-39-
<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); (XII) 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
-40-
<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
-41-
<PAGE>
Class A-3FL Regular Interest), the related Class of Uncertificated
Lower-Tier
Interests set forth below:
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]
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
"Relevant Servicing Criteria" means the Servicing Criteria
applicable to each Reporting Servicer (as set forth, with respect
to the
Servicer, the Special Servicer, the Paying Agent and the Trustee,
on Schedule 3
attached hereto). For clarification purposes, multiple Reporting
Servicers can
have responsibility for the same Relevant Servicing Criteria.
"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
-42-
<PAGE>
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.
"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.
-43-
<PAGE>
"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.
"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, and
each
Servicing Function Participant (including the Paying Agent, the
Trustee and each
Sub-Servicer),, 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.
-44-
<PAGE>
"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.
"Service(s)(ing)" means, in accordance with Regulation AB, the
act
of servicing and administering the Mortgage Loans or any other
assets of the
Trust by an entity that meets the definition of "servicer" set
forth in Item
1101 of Regulation AB and is subject to the disclosure requirements
set forth in
Item 1108 of Regulation AB.
"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" means any Person, other than
the
Master Servicer and the Special Servicer, that, within the meaning
of Item 1122
of Regulation AB, is performing activities addressed by the
Servicing Criteria,
unless such Person's activities relate only to 5% or less of the
Mortgage Loans
(based on their principal balance).
"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,
-45-
<PAGE>
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
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
-46-
<PAGE>
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).
"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:
-47-
<PAGE>
(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.
"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.
-48-
<PAGE>
"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 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)_____________.
-49-
<PAGE>
"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 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.
"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.
-50-
<PAGE>
"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
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.
-51-
<PAGE>
"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:
(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]
-52-
<PAGE>
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
-53-
<PAGE>
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
-54-
<PAGE>
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
-55-
<PAGE>
Trustee Exception Report, of the documents specified in clauses
(i)-(v), (viii),
(ix) and (XII) 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), (XII) 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), (XII) 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
-56-
<PAGE>
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), (XII), (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
-57-
<PAGE>
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
-58-
<PAGE>
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.
-59-
<PAGE>
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]
-60-
<PAGE>
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
-61-
<PAGE>
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.
-62-
<PAGE>
(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
-63-
<PAGE>
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
-64-
<PAGE>
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
-65-
<PAGE>
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
-66-
<PAGE>
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]
-67-
<PAGE>
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
-68-
<PAGE>
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
-69-
<PAGE>
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
-70-
<PAGE>
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;
-71-
<PAGE>
(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 of general collections on the
Mortgage
Loans and REO Properties for any unreimbursed expense
reasonably
incurred by such
Person in connection with the enforcement of any Mortgage
Loan
Seller's obligations under Section 3 of the applicable Mortgage
Loan
Purchase
Agreement, but only to the extent that such expenses are not
reimbursable pursuant to clause (vii) above or otherwise;
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant
to Section 3.09(c) out of general collections on the Mortgage
Loans and
REO Properties;
(x) to pay itself, as additional servicing compensation in
accordance
with Section 3.11(a), (a) (A) interest and investment income
earned in
respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the
extent
of the Net
Investment Earnings with respect to the Certificate Account for
any period
from any Distribution Date to the immediately succeeding
P&I
Advance
Date) and (B) Penalty Charges on Mortgage Loans (other than
Specially
-72-
<PAGE>
Serviced
Mortgage Loans), but only to the extent collected from the
related
Mortgagor and to the extent that all amounts then due and
payable
with
respect to the related Mortgage Loan have been paid and are not
needed to
pay interest on Advances or costs and expenses incurred by the
Trust Fund
in accordance with Section 3.11(c); and (b) to pay the Special
Servicer,
as additional servicing compensation in accordance with the
second
paragraph of Section 3.11(b), Penalty Charges on Specially
Serviced
Mortgage
Loans (but only to the extent collected from the related
Mortgagor
and to the extent that all amounts then due and payable with
respect to
the related Specially Serviced Mortgage Loan have been paid and
are not
needed to pay interest on Advances or costs and expenses
incurred
by the
Trust Fund in accordance with Section 3.11(c));
(xi) to recoup any amounts deposited in the Certificate Account
in
error;
(xii) to pay itself, the Special Servicer, the Depositor[, the
Extension
Adviser] or any of their respective directors, officers,
members,
managers, employees and agents, as the case may be, any amounts
payable to
any such Person pursuant to Sections 6.03(a) or 6.03(b);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a) and
10.01(g)
to the
extent payable out of the Trust Fund, (b) the cost of any
Opinion
of Counsel
contemplated by Sections 11.01(a) or 11.01(c) in connection
with an
amendment to this Agreement requested by the Trustee or the
Servicer,
which amendment is in furtherance of the rights and interests
of
Certificateholders and (c) the cost of obtaining the REO
Extension
contemplated by Section 3.16(a);
(xiv) to pay out of general collections on the Mortgage Loans
and
REO
Properties any and all federal, state and local taxes imposed on
the
Upper-Tier
REMIC, the Lower-Tier REMIC or any of their assets or
transactions, together with all incidental costs and expenses, to
the
extent
that none of the Servicer, the Special Servicer, the Fiscal
Agent
or the
Trustee is liable therefor pursuant to Section 10.01(h);
(xv) to reimburse the Servicer out of general collections on
the
Mortgage
Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section
10.01(d);
(xvi) to pay itself, the Special Servicer, or the Mortgage Loan
Sellers,
as the case may be, with respect to each Mortgage Loan, if any,
previously
purchased by such Person pursuant to this Agreement, all
amounts
received thereon subsequent to the date of purchase relating to
periods
after the date of purchase;
(xvii) [to remit to the Paying Agent for deposit in the
Interest
Reserve
Account the amounts required to be deposited in the Interest
Reserve
Account pursuant to Section 3.25;] and
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
-73-
<PAGE>
The Servicer shall keep and maintain separate accounting records,
on
a loan-by-loan and property-by-property basis when appropriate, for
the purpose
of justifying any withdrawal from the Certificate Account.
The Servicer shall pay to the Special Servicer (or to
third-party
contractors at the direction of the Special Servicer) from the
Certificate
Account amounts permitted to be paid to it (or to such third party
contractors)
therefrom promptly upon receipt of a certificate of a Responsible
Officer of the
Special Servicer describing the item and amount to which the
Special Servicer
(or any such third party contractor) is entitled. The Servicer may
rely
conclusively on any such certificate and shall have no duty to
re-calculate the
amounts stated therein. The Special Servicer shall keep and
maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Loan,
on a
loan-by-loan and property-by-property basis, for the purpose of
justifying any
request for withdrawal from the Certificate Account. To the extent
a
Nonrecoverable Advance is required to be reimbursed from the
general collections
on the Mortgage Loans and REO Properties pursuant to clause (v)
above, such
reimbursement shall be made first, from the general collections
available on the
Mortgage Loans (or related REO Properties) included in the same
Loan Group as
such Mortgage Loan and if the general collections in such Loan
Group are not
sufficient to make such reimbursement in full, then from the
general collections
available in the other Loan Group (after giving effect to any
reimbursement of
Nonrecoverable Advances related to such other Loan Group).
(b) The Paying Agent, on behalf of the Trustee, may, from time
to
time, make withdrawals from the Lower-Tier Distribution Account for
any of the
following purposes:
(i) to make deposits of the Lower-Tier Distribution Amount
pursuant
to Section
4.01(b) and the amount of any Prepayment Premium and Yield
Maintenance Charges distributable pursuant to Section 4.01(d) in
the
Upper-Tier
Distribution Account and to make distributions on the Class
[LR]
Certificates pursuant to Section 4.01(b);
(ii) to pay the Servicer, as additional servicing compensation
in
accordance
with the second paragraph of Section 3.11(a), interest and
investment
income earned in respect of amounts relating to the Trust Fund
held in
the Lower-Tier Distribution Account as provided in Section
3.06(b)
(but only
to the extent of the Net Investment Earnings with respect to
the
Lower-Tier
Distribution Account for any period from any Distribution Date
to the
immediately succeeding P&I Advance Date);
(iii) to pay the Trustee accrued but unpaid Trustee Fees;
(iv) to pay to the Trustee, the Fiscal Agent or any of their
directors,
officers, employees and agents, as the case may be, any amounts
payable or
reimbursable to any such Person pursuant to Section 8.05(b);
(v) to pay for the cost of the Opinion of Counsel contemplated
by
Section
11.01(c) in connection with any amendment to this Agreement
requested
by the Trustee; and
(vi) to clear and terminate the Lower-Tier Distribution Account
at
the
termination of this Agreement pursuant to Section 9.01.
-74-
<PAGE>
(c) The Paying Agent, on behalf of the Trustee, may make
withdrawals
from the Upper-Tier Distribution Account for any of the following
purposes:
(i) to make distributions to Certificateholders (other than
Holders
of the
[Class A-3FL and] Class [LR] Certificates) on each Distribution
Date
pursuant to Section 4.01 or 9.01, as applicable [and to make
distributions to the Class A-3FL Floating Rate Account with respect
to the
Class
A-3FL Regular Interest pursuant to this Agreement];
(ii) to pay the Servicer, as additional servicing compensation
in
accordance
with the second paragraph of Section 3.11(a), interest and
investment
income earned in respect of amounts held in the Upper-Tier
Distribution Account as provided in Section 3.06(b) (but only to
the
extent of
the Net Investment Earnings with respect to the Upper-Tier
Distribution Account for any period from any Distribution Date to
the
immediately succeeding P&I Advance Date); and
(iii) to clear and terminate the Upper-Tier Distribution Account
at
the
termination of this Agreement pursuant to Section 9.01.
(d) Notwithstanding anything herein to the contrary, with respect
to
any Mortgage Loan, if amounts on deposit in the Certificate Account
and the
Lower-Tier Distribution Account are not sufficient to pay all of
the amounts
listed in Sections 3.05(a) and (b), then the items (iii) and (iv)
of Section
3.05(b) shall be paid in full prior to the payment of any fees or
reimbursement
of any expenses of the Servicer payable under Section 3.05(a).
(e) [The Trustee shall make withdrawals from the Class A-3FL
Floating Rate Account in the following order of priority and only
for the
following purposes: (i) to withdraw amounts deposited in the Class
A-3FL
Floating Rate Account in error and pay such amounts to Persons
entitled thereto;
(ii) out of interest amounts to make regularly scheduled payments
of interest
required to be paid to the Class A-3FL Swap Counterparty under the
Class A-3FL
Swap Contract as specified in Section 3.30(c), provided there is no
Class A-3FL
Swap Default; (iii) to make distributions to the Holders of the
Class A-3FL
Certificates pursuant to Section 4.01(n); and (iv) to clear and
terminate the
Class A-3FL Floating Rate Account pursuant to Section 9.01.]
Section 3.06 Investment of Funds in the Certificate Account,
the
Interest Reserve Account, the Distribution Accounts and
the REO Account.
(a) The Servicer may direct [(or direct the Paying Agent to
direct
in the case of the Interest Reserve Account)] any depository
institution
maintaining the Certificate Account, the Upper-Tier Distribution
Account, the
Lower-Tier Distribution Account [, the Class A-3FL Floating Rate
Account,] or
the [Interest Reserve Account] (each, for purposes of this Section
3.06, an
"Investment Account") and the Special Servicer may direct any
depository
institution maintaining the REO Account (also for purpose of this
Section 3.06,
an "Investment Account") to invest, or if it is such depository
institution, may
itself invest, the funds held therein only in one or more Permitted
Investments
bearing interest or sold at a discount, and maturing, unless
payable on demand,
(i) no later than the Business Day immediately preceding the next
succeeding
date on which such funds are required to be withdrawn from such
account pursuant
-75-
<PAGE>
to this Agreement, if a Person other than the depository
institution maintaining
such account is the obligor thereon and (ii) no later than the date
on which
such funds are required to be withdrawn from such account pursuant
to this
Agreement, if the depository institution maintaining such account
is the obligor
thereon. All such Permitted Investments shall be held to maturity,
unless
payable on demand. Any investment of funds in an Investment Account
shall be
made in the name of the Trustee (in its capacity as such). The
Servicer (in the
case of the Certificate Account [or any Distribution Account]) or
the Special
Servicer (in the case of the REO Account), on behalf of the
Trustee, shall
maintain continuous possession of any Permitted Investment of
amounts in the
Certificate Account [or any Distribution Account] or REO Account
that is either
(i) a "certificated security," as such term is defined in the UCC
or (ii) other
property in which a secured party may perfect its security interest
by
possession under the UCC or any other applicable law. [Funds on
deposit in the
Distribution Accounts, if any, shall remain uninvested.] Possession
of any such
Permitted Investment by the Servicer or the Special Servicer shall
constitute
possession by a person designated by the Trustee for purposes of
Section 8-313
of the UCC and possession by the Trustee, as secured party, for
purposes of
Section 9-305 of the UCC and any other applicable law. Except as
otherwise
provided herein, the Trustee shall have sole control (except with
respect to
investment direction) over Permitted Investments of amounts in the
Distribution
Accounts. In the event amounts on deposit in an Investment Account
are at any
time invested in a Permitted Investment payable on demand, the
Servicer (in the
case of the Certificate Account), the Special Servicer (in the case
of the REO
Account) or the Paying Agent (in the case of the Distribution
Accounts and the
[Interest Reserve Account]) shall:
(i) consistent with any notice required to be given thereunder,
demand
that payment thereon be made on the last day such Permitted
Investment
may otherwise mature hereunder in an amount equal to the lesser
of (a) all
amounts then payable thereunder and (b) the amount required to
be
withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer, the Special Servicer or the Trustee,
as the
case may
be, that such Permitted Investment would not constitute a
Permitted
Investment in respect of funds thereafter on deposit in the
Investment
Account.
(b) Interest and investment income realized on funds deposited
in
each of the Certificate Account, the Distribution Accounts and the
[Interest
Reserve Account], to the extent of the Net Investment Earnings, if
any, with
respect to such account for each period from any Distribution Date
to the
immediately succeeding P&I Advance Date, shall be for the sole
and exclusive
benefit of the Servicer and shall be subject to its withdrawal, or
withdrawal at
its direction, in accordance with Section 3.05(a), 3.05(b) or
3.05(c), as the
case may be. Interest and investment income realized on funds
deposited in the
REO Account, to the extent of the Net Investment Earnings, if any,
with respect
to such account for each period from any Distribution Date to the
immediately
succeeding P&I Advance Date, shall be for the sole and
exclusive benefit of the
Special Servicer and shall be subject to its withdrawal in
accordance with
Section 3.16(c). In the event that any loss shall be incurred in
respect of any
Permitted Investment on deposit in any of the Certificate Account,
the
Distribution Accounts, the [Interest Reserve Account] or the REO
Account, the
Servicer (in the case of the Certificate Account, the Distribution
Accounts or
the [Interest Reserve Account]) and the Special Servicer (in the
case of
-76-
<PAGE>
the REO Account) shall deposit therein, no later than the P&I
Advance Date,
without right of reimbursement, the amount of the Net Investment
Loss, if any,
with respect to such account for the period from the immediately
preceding
Distribution Date to such P&I Advance Date, provided, that
neither the Servicer
nor the Special Servicer shall be required to deposit any loss on
an investment
of funds in an Investment Account if such loss is incurred solely
as a result of
the insolvency of the federal or state chartered depository
institution or trust
company that holds such Investment Account, so long as such
depository
institution or trust company satisfied the qualifications set forth
in the
definition of Eligible Account at the time such investment was
made.
(c) Except as otherwise expressly provided in this Agreement, if
any
default occurs in the making of a payment due under any Permitted
Investment, or
if a default occurs in any other performance required under any
Permitted
Investment, the Trustee may and, subject to Section 8.02, upon the
request of
Holders of Certificates entitled to a majority of the Voting Rights
allocated to
any Class shall, take such action as may be appropriate to enforce
such payment
or performance, including the institution and prosecution of
appropriate
proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and
Omissions
and Fidelity Coverage.
(a) The Servicer shall use its reasonable best efforts to cause
the
Mortgagor to maintain, to the extent required by the terms of the
related
Mortgage Note, or if the Mortgagor does not so maintain, shall
itself maintain,
for each Mortgage Loan all Insurance Policy coverage as is required
under the
related Mortgage (to the extent that the Trustee has an insurable
interest and
such Insurance Policy coverage is available at commercially
reasonable rates,
consistent with the Servicing Standards); provided, however, that
if any
Mortgage permits the holder thereof to dictate to the Mortgagor the
Insurance
Policy coverage to be maintained on such Mortgaged Property, the
Servicer shall
impose such insurance requirements as are consistent with the
Servicing
Standards. Subject to Section 3.17(a), the Special Servicer shall
maintain for
each REO Property no less Insurance Policy coverage than was
previously required
of the Mortgagor under the related Mortgage Loan. All such
Insurance Policies
shall (i) contain a "standard" mortgagee clause, with loss payable
to the
Servicer on behalf of the Trustee (in the case of insurance
maintained in
respect of Mortgage Loans other than REO Properties), (ii) be in
the name of the
Special Servicer (in the case of insurance maintained in respect of
REO
Properties) on behalf of the Trustee, (iii) include coverage in an
amount not
less than the lesser of (x) the full replacement cost of the
improvements
securing Mortgaged Property or the REO Property, as applicable, or
(y) the
outstanding principal balance owing on the related Mortgage Loan or
REO Loan, as
applicable, and in any event, the amount necessary to avoid the
operation of any
co-insurance provisions, (iv) include a replacement cost
endorsement providing
no deduction for depreciation (unless such endorsement is not
permitted under
the related Mortgage Loan documents), (v) be noncancellable without
30 days'
prior written notice to the insured party and (vi) be issued by a
Qualified
Insurer authorized under applicable law to issue such Insurance
Policies. Any
amounts collected by the Servicer or the Special Servicer under any
such
Insurance Policies (other than amounts to be applied to the
restoration or
repair of the related Mortgaged Property or REO Property or amounts
to be
released to the related Mortgagor, in each case in accordance with
the Servicing
Standards and the provisions of the related Mortgage Loan) shall be
deposited in
the Certificate Account, subject to withdrawal pursuant to
-77-
<PAGE>
Section 3.05(a). Any costs incurred by the Servicer in maintaining
any such
Insurance Policies in respect of Mortgage Loans (other than REO
Properties) (i)
if the Mortgagor defaults on its obligation to do so, shall be
advanced by the
Servicer as a Servicing Advance and will be charged to the related
Mortgagor and
(ii) shall not, for purposes thereof, including, without
limitation, calculating
monthly distributions to Certificateholders, be added to the unpaid
principal
balance of the related Mortgage Loan, notwithstanding that the
terms of such
Mortgage Loan so permit. Any cost incurred by the Special Servicer
in
maintaining any such Insurance Policies with respect to REO
Properties shall be
an expense of the Trust payable out of the related REO Account
pursuant to
Section 3.16(c) or, if the amount on deposit therein is
insufficient therefor,
advanced by the Servicer as a Servicing Advance.
(b) (i) If the Servicer or the Special Servicer shall obtain
and
maintain a blanket Insurance Policy with a Qualified Insurer
insuring against
fire and hazard losses on all of the Mortgage Loans or REO
Properties, as the
case may be, required to be serviced and administered hereunder,
then, to the
extent such Insurance Policy provides protection equivalent to the
individual
policies otherwise required, the Servicer or the Special Servicer
shall
conclusively be deemed to have satisfied its obligation to cause
fire and hazard
insurance to be maintained on the related Mortgaged Properties or
REO
Properties. Such Insurance Policy may contain a deductible clause,
in which case
the Servicer or the Special Servicer shall, if there shall not have
been
maintained on the related Mortgaged Property or REO Property a fire
and hazard
Insurance Policy complying with the requirements of Section
3.07(a), and there
shall have been one or more losses which would have been covered by
such
Insurance Policy, promptly deposit into the Certificate Account
from its own
funds the amount of such loss or losses that would have been
covered under the
individual policy but are not covered under the blanket Insurance
Policy because
of such deductible clause to the extent that any such deductible
exceeds the
deductible limitation that pertained to the related Mortgage Loan,
or in the
absence of such deductible limitation, the deductible limitation
which is
consistent with the Servicing Standard. In connection with its
activities as
administrator and servicer of the Mortgage Loans, the Servicer
agrees to prepare
and present, on behalf of itself, the Trustee and
Certificateholders, claims
under any such blanket Insurance Policy in a timely fashion in
accordance with
the terms of such policy. The Special Servicer, to the extent
consistent with
the Servicing Standards, may maintain, at its own expense,
earthquake insurance
on REO Properties, provided coverage is available at commercially
reasonable
rates, the cost of which shall be a Servicing Advance.
(ii) If the Servicer or the Special Servicer shall cause any
Mortgaged
Property or REO Property to be covered by a master single
interest
or force placed insurance policy with a Qualified Insurer
naming
the
Servicer or the Special Servicer on behalf of the Trustee as the
loss
payee,
then to the extent such Insurance Policy provides protection
equivalent
to the individual policies otherwise required, the Servicer or
the
Special Servicer shall conclusively be deemed to have satisfied
its
obligation
to cause such insurance to be maintained on the related
Mortgage
Properties and REO Properties. In the event the Servicer or the
Special
Servicer shall cause any Mortgaged Property or REO Property to
be
covered by
such master single interest or force placed insurance policy,
the
incremental costs of such insurance applicable to such
Mortgaged
Property
or REO Property (i.e., other than any minimum or standby
premium
payable
for such policy whether or not any Mortgaged Property or REO
Property
is covered thereby) shall be paid by the Servicer as a
Servicing
Advance.
Such master single interest or force placed
-78-
<PAGE>
policy may
contain a deductible clause, in which case the Servicer or the
Special
Servicer shall, in the event that there shall not have been
maintained
on the related Mortgaged Property or REO Property a policy
otherwise
complying with the provisions of Section 3.07(a), and there
shall have
been one or more losses which would have been covered by such
policy had
it been maintained, deposit into the Certificate Account from
its own
funds the amount not otherwise payable under the master single
interest
or force-placed policy because of such deductible clause, to
the
extent
that any such deductible exceeds the deductible limitation that
pertained
to the related Mortgage Loan, or, in the absence of any such
deductible
limitation, the deductible limitation which is consistent with
the
Servicing Standard.
(c) Each of the Servicer and the Special Servicer shall at all
times
during the term of this Agreement (or, in the case of the Special
Servicer, at
all times during the term of this Agreement during which Specially
Serviced
Loans and/or REO Properties as to which it is the Special Servicer
exist as part
of the Trust Fund) keep in force with a Qualified Insurer, a
fidelity bond in
such form and amount as are consistent with the Servicing Standard.
The Servicer
or Special Servicer shall be deemed to have complied with the
foregoing
provision if an Affiliate thereof has such fidelity bond coverage
and, by the
terms of such fidelity bond, the coverage afforded thereunder
extends to the
Servicer or Special Servicer, as the case may be. Such fidelity
bond shall
provide that it may not be canceled without ten days' prior written
notice to
the Trustee. So long as the long-term unsecured debt obligations of
the Servicer
(or its direct or indirect parent company) are rated not lower than
"A" by the
Rating Agencies, the Servicer may self-insure with respect to the
fidelity bond
coverage required as described above, in which case it shall not be
required to
maintain an insurance policy with respect to such coverage.
Each of the Servicer and the Special Servicer shall at all
times
during the term of this Agreement (or, in the case of the Special
Servicer, at
all times during the term of this Agreement during which Specially
Serviced
Mortgage Loans and/or REO Properties exist as part of the Trust
Fund) also keep
in force with a Qualified Insurer a policy or policies of insurance
covering
loss occasioned by the errors and omissions of its officers and
employees in
connection with its servicing obligations hereunder, which policy
or policies
shall be in such form and amount as are consistent with the
Servicing Standard.
The Servicer or Special Servicer shall be deemed to have complied
with the
foregoing provisions if an Affiliate thereof has such insurance
and, by the
terms of such policy or policies, the coverage afforded thereunder
extends to
the Servicer or Special Servicer, as the case may be. Any such
errors and
omissions policy shall provide that it may not be canceled without
ten days'
prior written notice to the Trustee. So long as the long-term
unsecured debt
obligations of the Servicer or the Special Servicer (or its direct
or indirect
parent company) are rated not lower than "A" by the Rating
Agencies, the
Servicer or the Special Servicer, as the case may be, may
self-insure with
respect to the errors and omissions coverage required as described
above, in
which case it shall not be required to maintain an insurance policy
with respect
to such coverage.
(d) At the time the Servicer determines in accordance with the
Servicing Standard that any Mortgaged Property shall be in a
federally
designated special flood hazard area (and such flood insurance has
been made
available), the Servicer will use its reasonable best efforts to
cause the
related Mortgagor (in accordance with applicable law and the terms
of the
Mortgage Loan documents) to maintain, and, if the related Mortgagor
shall
default in its
-79-
<PAGE>
obligation to so maintain, shall itself maintain to the extent
available at
commercially reasonable rates (as determined by the Servicer in
accordance with
the Servicing Standards), flood insurance in respect thereof, but
only to the
extent the related Mortgage Loan permits the mortgagee to require
such coverage
and the maintenance of such coverage is consistent with the
Servicing Standards.
Such flood insurance shall be in an amount equal to the lesser of
(i) the unpaid
principal balance of the related Mortgage Loan, and (ii) the
maximum amount of
insurance which is available under the National Flood Insurance Act
of 1968, as
amended. If the cost of any insurance described above is not borne
by the
Mortgagor, the Servicer shall promptly make a Servicing Advance for
such costs,
subject to Section 3.03(c).
(e) During all such times as any REO Property shall be located in
a
federally designated special flood hazard area, the Special
Servicer will cause
to be maintained, to the extent available at commercially
reasonable rates (as
determined by the Special Servicer in accordance with the Servicing
Standards),
a flood insurance policy meeting the requirements of the current
guidelines of
the Federal Insurance Administration in an amount representing
coverage not less
than the maximum amount of insurance which is available under the
National Flood
Insurance Act of 1968, as amended. The cost of any such flood
insurance with
respect to an REO Property shall be an expense of the Trust payable
out of the
related REO Account pursuant to Section 3.16(c) or, if the amount
on deposit
therein is insufficient therefor, paid by the Servicer as a
Servicing Advance.
Section 3.08 Enforcement of Due-On-Sale Clauses; Assumption
Agreements.
(a) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other
transfer
of an
interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan may not be assumed without
the
consent of
the mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust
Fund, the
Servicer with the written consent of the Special Servicer with
respect to
non-Specially Serviced Mortgage Loans and the Special Servicer with
respect to
Specially Serviced Mortgage Loans, on behalf of the Trustee as the
mortgagee of
record, shall[, subject to Section 6.07,] exercise (or waive its
right to
exercise) any right it may have with respect to such Mortgage Loan
(x) to
accelerate the payments thereon or (y) to withhold its consent to
any such sale
or other transfer, in a manner consistent with the Servicing
Standards.
(b) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of
any
additional
lien or other encumbrance on the related Mortgaged Property; or
-80-
<PAGE>
(ii) requires the consent of the mortgagee to the creation of
any
such
additional lien or other encumbrance on the related Mortgaged
Property,
then, for so long as such Mortgage Loan is included in the Trust
Fund, the
Servicer with the written consent of the Special Servicer with
respect to
non-Specially Serviced Mortgage Loans and the Special Servicer with
respect to
Specially Serviced Mortgage Loans, on behalf of the Trustee as the
mortgagee of
record, shall[, subject to Section 6.07,] exercise (or waive its
right to
exercise) any right it may have with respect to such Mortgage Loan
(x) to
accelerate the payments thereon or (y) to withhold its consent to
the creation
of any such additional lien or other encumbrance, in a manner
consistent with
the Servicing Standards.
(c) Nothing in this Section 3.08 shall constitute a waiver of
the
Trustee's right, as the mortgagee of record, to receive notice of
any assumption
of a Mortgage Loan, any sale or other transfer of the related
Mortgaged Property
or the creation of any additional lien or other encumbrance with
respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(f),
neither the Servicer nor the Special Servicer shall agree to
modify, waive or
amend any term of any Mortgage Loan in connection with the taking
of, or the
failure to take, any action pursuant to this Section 3.08, other
than the
identity of the Mortgagor pursuant to an assumption agreement.
(e) Notwithstanding the foregoing, the Servicer, with respect
to
non-Specially Serviced Mortgage Loans, and the Special Servicer,
with respect to
Specially Serviced Mortgage Loans, shall not waive any rights under
a
"due-on-encumbrance" clause with respect to any Mortgage Loan, or
under any
"due-on-sale" clause with respect to any of the Mortgage Loans set
forth on
Schedule 2 hereto unless it obtains from each Rating Agency a
written
confirmation that such waiver will not cause a downgrading,
qualification or
withdrawal of the then current rating assigned to any of the
Certificates. To
the extent any fee charged by each Rating Agency in connection with
rendering
such written confirmation is not paid by the related Mortgagor,
such fee is to
be an expense of the Trust. Notwithstanding the foregoing, the
Servicer, with
respect to non-Specially Serviced Mortgage Loans, and the Special
Servicer, with
respect to Specially Serviced Mortgage Loans, shall not waive any
rights under a
"due-on-sale" clause with respect to any of the Mortgage Loans
which (together
with any Mortgage Loans cross-collateralized with such Mortgage
Loans) represent
over 2% of the outstanding principal balance of the pool of
Mortgage Loans
unless it obtains from each Rating Agency a written confirmation
that such
waiver would not cause a downgrading, qualification or withdrawal
of the then
current rating assigned to any of the Certificates. To the extent
any fee
charged by each Rating Agency in connection with rendering such
written
confirmation is not paid by the related Mortgagor, such fee is to
be an expense
of the Trust. The Servicer or the Special Servicer, as applicable,
shall provide
copies of any such waivers to each Rating Agency with respect to
each Mortgage
Loan. The Servicer or the Special Servicer, as applicable, shall
not permit a
Mortgage Loan to be assumed unless the Servicer or the Special
Servicer, as
applicable, determines that such assumption is consistent with the
Servicing
Standards, for such purposes taking into account the Debt Service
Coverage Ratio
of the Mortgage Loan assuming the transfer occurs (with leasing
commissions,
tenant improvement costs and capital expenditures deducted from
cash flow in
amounts equal to the originator's cap items at origination and
using taxes based
on a fully assessed number calculated off the proposed purchase
price), and
shall provide copies of the
-81-
<PAGE>
results of such calculations to each Rating Agency showing a
comparison of the
recalculated DSCR versus the DSCR at origination; provided,
however, that so
long as all Holders of each Class of Certificates the ratings of
which would
otherwise be downgraded, qualified or withdrawn consent to such
waiver, such
Rating Agency confirmation will not be required.
(f) Notwithstanding any other provisions of this Section 3.08
or
Section 3.20, the Servicer may, without any Rating Agency
confirmation as
provided in clause (e) above or Special Servicer approval, (i)
consent to
subordination of the related Mortgage Loan to such easement or
right-of-way for
utilities, access, parking, public improvements or another purpose,
provided the
Servicer shall have determined in accordance with the Servicing
Standards that
such easement or right-of-way shall not materially interfere with
the
then-current use of the related Mortgaged Property, or the security
intended to
be provided by such Mortgage, the related Mortgagor's ability to
repay the
Mortgage Loan, or materially or adversely affect the value of such
Mortgaged
Property, (ii) grant waivers of minor covenant defaults (other than
financial
covenants) including late financial statements, (iii) grant
releases of
non-material parcels of a Mortgaged Property (provided, that
releases as to
which the related Mortgage Loan documents expressly require the
mortgagee
thereunder to make such releases upon the satisfaction of certain
conditions
shall be made as required by the Mortgage Loan documents), and (iv)
grants of
easements and rights-of-way that do not materially affect the use
or value of a
Mortgaged Property or the Mortgagor's ability to make any payments
with respect
to the related Mortgage Loan; provided, that any such modification,
waiver or
amendment (w) would not in any way affect a payment term of the
Certificates,
(x) would not constitute a "significant modification" of such
Mortgage Loan
pursuant to Treasury Regulations Section 1.860G-2(b) and would not
otherwise
constitute an Adverse REMIC Event with respect to any REMIC, (y)
agreeing to
such modification, waiver or amendment would be consistent with the
Servicing
Standard and (z) agreeing to such modification, waiver or amendment
shall not
violate the terms, provisions or limitations of this Agreement or
any other
document contemplated hereby.
Section 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to [Section 6.07 and]
subsections (b) through (d) of this Section 3.09, exercise
reasonable efforts,
consistent with the Servicing Standards, to foreclose upon or
otherwise
comparably convert (which may include an REO Acquisition) the
ownership of
property securing such Mortgage Loans, as come into and continue in
default as
to which no satisfactory arrangements can be made for collection of
delinquent
payments, and which are not released from the Trust Fund pursuant
to any other
provision hereof. The foregoing is subject to the provision that,
in any case in
which a Mortgaged Property shall have suffered damage from an
Uninsured Cause,
the Servicer shall not be required to make a Servicing Advance and
expend funds
toward the restoration of such property unless the Special Servicer
has
determined in its reasonable discretion that such restoration will
increase the
net proceeds of liquidation of such Mortgaged Property to
Certificateholders
after reimbursement to the Servicer for such Servicing Advance, and
the Servicer
has determined that such Servicing Advance together with accrued
and unpaid
interest thereon will be recoverable by the Servicer out of the
proceeds of
liquidation of such Mortgaged Property, as contemplated in Section
3.05(a)(iv).
The Special Servicer shall be responsible for all other costs and
expenses
incurred by it in any such proceedings (such costs and expenses to
be advanced
by the Servicer to the Special Servicer), provided, that, in each
case, such
cost or
-82-
<PAGE>
expense would not, if incurred, constitute a Nonrecoverable
Servicing Advance.
Nothing contained in this Section 3.09 shall be construed so as to
require the
Servicer or the Special Servicer, on behalf of the Trust, to make a
bid on any
Mortgaged Property at a foreclosure sale or similar proceeding that
is in excess
of the fair market value of such property, as determined by the
Servicer or the
Special Servicer in its reasonable and good faith judgment taking
into account
the factors described in Section 3.18(d) and the results of any
Appraisal
obtained pursuant to the following sentence, all such bids to be
made in a
manner consistent with the Servicing Standards. If and when the
Special Servicer
or the Servicer deems it necessary and prudent for purposes of
establishing the
fair market value of any Mortgaged Property securing a Defaulted
Mortgage Loan,
whether for purposes of bidding at foreclosure or otherwise, the
Special
Servicer or the Servicer, as the case may be, is authorized to have
an Appraisal
performed with respect to such property by an Independent
MAI-designated
appraiser the cost of which shall be paid by the Servicer as a
Servicing
Advance.
(b) The Special Servicer shall not acquire any personal
property
pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within
the
meaning of
Section 856(e)(1) of the Code) so acquired by the Special
Servicer;
or
(ii) the Special Servicer shall have obtained an Opinion of
Counsel
(the cost
of which shall be paid by the Servicer as a Servicing Advance)
to the
effect that the holding of such personal property by the Trust
Fund
will not
cause the imposition of a tax on the Lower-Tier REMIC or the
Upper-Tier
REMIC under the REMIC Provisions or cause the Lower-Tier REMIC
or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that
any
Uncertificated Lower-Tier Interest or Certificate is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section
3.09,
neither the Special Servicer nor the Servicer shall, on behalf of
the Trustee,
obtain title to a Mortgaged Property in lieu of foreclosure or
otherwise, or
take any other action with respect to any Mortgaged Property, if,
as a result of
any such action, the Trustee, on behalf of the Certificateholders,
would be
considered to hold title to, to be a "mortgagee-in-possession" of,
or to be an
"owner" or "operator" of such Mortgaged Property within the meaning
of CERCLA or
any comparable law, unless (as evidenced by an Officer's
Certificate to such
effect delivered to the Trustee) the Special Servicer has
previously determined
in accordance with the Servicing Standards, based on an
Environmental Assessment
of such Mortgaged Property performed by an Independent Person who
regularly
conducts Environmental Assessments and performed within six months
prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such
actions as
are
necessary to bring the Mortgaged Property in compliance therewith
is
reasonably
likely to produce a greater recovery on a net present value
basis than
not taking such actions; and
(ii) there are no circumstances or conditions present at the
Mortgaged
Property relating to the use, management or disposal of
Hazardous
Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be
-83-
<PAGE>
required
under any applicable environmental laws and regulations or, if
such
circumstances or conditions are present for which any such
action
could be
required, that taking such actions with respect to such
Mortgaged
Property
is reasonably likely to produce a greater recovery on a net
present
value basis than not taking such actions.
The cost of any such Environmental Assessment shall be paid by
the
Servicer as a Servicing Advance, and the cost of any remedial,
corrective or
other further action contemplated by clause (i) and/or clause (ii)
of the
preceding sentence may be withdrawn from the Certificate Account at
the
direction of the Special Servicer as an expense of the Trust Fund
pursuant to
Section 3.05(a)(ix); and if any such Environmental Assessment so
warrants, the
Special Servicer shall, at the expense of the Trust Fund, perform
such
additional environmental testing as it deems necessary and prudent
to determine
whether the conditions described in clauses (i) and (ii) of the
preceding
sentence have been satisfied.
(d) If (i) the environmental testing contemplated by subsection
(c)
above establishes that either of the conditions set forth in
clauses (i) and
(ii) of the first sentence thereof has not been satisfied with
respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and (ii)
there has been no
breach of any of the representations and warranties set forth in or
required to
be made pursuant to Section 2 of each of the Mortgage Loan Purchase
Agreements
for which the applicable Mortgage Loan Seller could be required to
repurchase
such Defaulted Mortgage Loan pursuant to Section 3 of the
applicable Mortgage
Loan Purchase Agreement, then the Special Servicer shall[, subject
to Section
6.07,] take such action as it deems to be in the best economic
interest of the
Trust Fund (other than proceeding to acquire title to the Mortgaged
Property)
and is hereby authorized at such time as it deems appropriate to
release such
Mortgaged Property from the lien of the related Mortgage; provided,
that, if
such Mortgage Loan has a then outstanding principal balance of
greater than
$1,000,000, then prior to the release of the related Mortgaged
Property from the
lien of the related Mortgage, (i) the Special Servicer shall have
notified the
Rating Agencies, the Trustee and the Servicer in writing of its
intention to so
release such Mortgaged Property and the bases for such intention,
(ii) the
Trustee shall have notified the Certificateholders in writing of
the Special
Servicer's intention to so release such Mortgaged Property, (iii)
the Holders of
Certificates entitled to a majority of the Voting Rights shall have
consented to
such release within 30 days of the Trustee's distributing such
notice (failure
to respond by the end of such 30-day period being deemed consent)
and (iv) the
Special Servicer shall have received written confirmation from each
Rating
Agency that such release will not cause the downgrade, withdrawal
or
qualification of any of the then current ratings of any Class of
Certificates.
To the extent any fee charged by each Rating Agency in connection
with rendering
such written confirmation is not paid by the related Mortgagor,
such fee is to
be an expense of the Trust.
(e) The Special Servicer shall provide written reports and a copy
of
any Environmental Assessments to the Trustee, the Paying Agent, the
Directing
Certificateholder and the Servicer monthly regarding any actions
taken by the
Special Servicer with respect to any Mortgaged Property securing a
defaulted
Mortgage Loan as to which the environmental testing contemplated in
subsection
(c) above has revealed that either of the conditions set forth in
clauses (i)
and (ii) of the first sentence thereof has not been satisfied, in
each case
until the earlier to occur of satisfaction of both such conditions,
repurchase
of the related Mortgage Loan by the applicable Mortgage Loan Seller
or release
of the lien of the related Mortgage on such
-84-
<PAGE>
Mortgaged Property. The Trustee shall forward all such reports to
the
Certificateholders and each Rating Agency promptly following the
receipt
thereof. In addition, the Servicer will deliver to the Class [F],
Class [G] and
Class [H] Certificateholders a copy of any such written reports and
any
Environmental Assessments within 15 days after receipt of such
written reports
and Environmental Assessments from the Special Servicer.
(f) The Special Servicer, with the reasonable cooperation of
the
Servicer, shall report to the Internal Revenue Service and the
related
Mortgagor, in the manner required by applicable law, the
information required to
be reported regarding any Mortgaged Property which is abandoned or
foreclosed
and the Special Servicer shall report, via Form 1099C, all
forgiveness of
indebtedness. The Special Servicer shall deliver a copy of any such
report to
the Trustee and the Special Servicer.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the
maintenance of
an action to obtain a deficiency judgment if the state in which the
Mortgaged
Property is located and the terms of the Mortgage Loan permit such
an action.
(h) The Special Servicer shall maintain accurate records,
prepared
by one of its Servicing Officers, of each Final Recovery
Determination in
respect of a Defaulted Mortgage Loan or REO Property and the basis
thereof. Each
Final Recovery Determination shall be evidenced by an Officer's
Certificate
delivered to the Trustee and the Servicer no later than the next
succeeding P&I
Advance Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt
by
the Servicer or the Special Servicer, as the case may be, of a
notification that
payment in full shall be escrowed in a manner customary for such
purposes, the
Servicer or Special Servicer, as the case may be, will immediately
notify the
Trustee and request delivery of the related Mortgage File. Any such
notice and
request shall be in the form of a Request for Release signed by a
Servicing
Officer and shall include a statement to the effect that all
amounts received or
to be received in connection with such payment which are required
to be
deposited in the Certificate Account pursuant to Section 3.04(a) or
remitted to
the Servicer to enable such deposit, have been or will be so
deposited. Within
seven Business Days (or within such shorter period as release can
reasonably be
accomplished if the Servicer notifies the Trustee of an exigency)
of receipt of
such notice and request, the Trustee shall release, or cause any
related
Custodian to release, the related Mortgage File to the Servicer or
Special
Servicer, as the case may be. No expenses incurred in connection
with any
instrument of satisfaction or deed of reconveyance shall be
chargeable to the
Certificate Account.
(b) From time to time as is appropriate for servicing or
foreclosure
of any Mortgage Loan, the Servicer or the Special Servicer shall
deliver to the
Trustee a Request for Release signed by a Servicing Officer. Upon
receipt of the
foregoing, the Trustee shall deliver or cause the related Custodian
to deliver,
the Mortgage File or any document therein to the Servicer or the
Special
Servicer (or a designee), as the case may be. Upon return of such
Mortgage File
or such document to the Trustee or the related Custodian, or the
delivery to the
Trustee of a
-85-
<PAGE>
certificate of a Servicing Officer of the Servicer or the Special
Servicer, as
the case may be, stating that such Mortgage Loan was liquidated and
that all
amounts received or to be received in connection with such
liquidation which are
required to be deposited into the Certificate Account pursuant to
Section
3.04(a) have been or will be so deposited, or that such Mortgage
Loan has become
an REO Property, a copy of the Request for Release shall be
released by the
Trustee to the Servicer or the Special Servicer (or a designee), as
the case may
be, with the original being released upon termination of the
Trust.
(c) Within seven Business Days (or within such shorter period
as
delivery can reasonably be accomplished if the Special Servicer
notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall
execute and
deliver to the Special Servicer any court pleadings, requests for
trustee's sale
or other documents necessary to the foreclosure or trustee's sale
in respect of
a Mortgaged Property or to any legal action brought to obtain
judgment against
any Mortgagor on the Mortgage Note or Mortgage or to obtain a
deficiency
judgment, or to enforce any other remedies or rights provided by
the Mortgage
Note or Mortgage or otherwise available at law or in equity. The
Special
Servicer shall be responsible for the preparation of all such
documents and
pleadings. When submitted to the Trustee for signature, such
documents or
pleadings shall be accompanied by a certificate of a Servicing
Officer
requesting that such pleadings or documents be executed by the
Trustee and
certifying as to the reason such documents or pleadings are
required and that
the execution and delivery thereof by the Trustee will not
invalidate or
otherwise affect the lien of the Mortgage, except for the
termination of such a
lien upon completion of the foreclosure or trustee's sale.
Section 3.11 Servicing Compensation.
(a) As compensation for its activities hereunder, the Servicer
shall
be entitled to receive the Servicing Fee with respect to each
Mortgage Loan and
REO Loan. As to each Mortgage Loan and REO Loan, the Servicing Fee
shall accrue
from time to time at the Servicing Fee Rate (in accordance with the
same terms
of the related Mortgage Note as are applicable to the accrual of
interest at the
Mortgage Rate) and shall be computed on the basis of the Stated
Principal
Balance of such Mortgage Loan and a 360-day year consisting of
twelve 30-day
months and, in connection with any partial month interest payment,
for the same
period respecting which any related interest payment due on such
Mortgage Loan
or deemed to be due on such REO Loan is computed. The Servicing Fee
with respect
to any Mortgage Loan or REO Loan shall cease to accrue if a
Liquidation Event
occurs in respect thereof. The Servicing Fee shall be payable
monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan
and REO
Revenues allocable as interest on each REO Loan, and as otherwise
provided by
Section 3.05(a). The Servicer shall be entitled to recover unpaid
Servicing Fees
in respect of any Mortgage Loan or REO Loan out of that portion of
related
payments, Insurance and Condemnation Proceeds, Liquidation Proceeds
and REO
Revenues (in the case of an REO Loan) allocable as recoveries of
interest, to
the extent permitted by Section 3.05(a). The right to receive the
Servicing Fee
may not be transferred in whole or in part except in connection
with the
transfer of all of the Servicer's responsibilities and obligations
under this
Agreement.
The Servicer shall be entitled to retain, and shall not be
required
to deposit in the Certificate Account pursuant to Section 3.04(a),
additional
servicing compensation in the form of 100% of all assumption
application fees on
the Mortgage Loans that are not Specially Serviced
-86-
<PAGE>
Mortgage Loans and 50% of all assumption and modification fees on
Mortgage Loans
that are not Specially Serviced Mortgage Loans (provided, that the
Servicer
shall be entitled to 100% of all modification fees with respect to
the
modifications described in Section 3.08(f)) to the extent that such
fees are
paid by the Mortgagor on Mortgage Loans that are not Specially
Serviced Mortgage
Loans and only to the extent that all amounts then due and payable
with respect
to the related Mortgage Loan (including interest on Advances) have
been paid. In
addition, the Servicer shall be entitled to retain as additional
servicing
compensation any charges for processing borrower requests,
beneficiary
statements or demands and amounts collected for checks returned for
insufficient
funds, in each case only to the extent actually paid by the related
Mortgagor
and shall not be required to deposit such amounts in the
Certificate Account
pursuant to Section 3.04(a). The Servicer shall also be entitled to
additional
servicing compensation in the form of: (i) Penalty Charges received
on the
Mortgage Loans and accrued during such time as such Mortgage Loan
was not a
Specially Serviced Mortgage Loan, but only to the extent actually
paid by the
related Mortgagor and to the extent that all amounts then due and
payable with
respect to the related Mortgage Loan (including interest on
Advances) and all
unpaid Advances and additional Trust Fund expenses payable during
the preceding
12-month period have been paid; (ii) interest or other income
earned on deposits
relating to the Trust Fund in the Certificate Account and the
Distribution
Accounts in accordance with Section 3.06(b) (but only to the extent
of the Net
Investment Earnings, if any, with respect to each such account for
each period
from any Distribution Date to the immediately succeeding P&I
Advance Date) and
(iii) interest earned on deposits in the Servicing Account which
are not
required by applicable law or the related Mortgage Loan to be paid
to the
Mortgagor. The Servicer shall be required to pay out of its own
funds all
expenses incurred by it in connection with its servicing activities
hereunder
(including, without limitation, payment of any amounts due and
owing to any of
its Sub-Servicers and the premiums for any blanket Insurance Policy
insuring
against hazard losses pursuant to Section 3.07), if and to the
extent such
expenses are not payable directly out of the Certificate Account,
and the
Servicer shall not be entitled to reimbursement therefor except as
expressly
provided in this Agreement.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee
with respect to
each Specially Serviced Mortgage Loan and REO Loan. As to each
Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee
shall accrue from
time to time at the Special Servicing Fee Rate (in accordance with
the same
terms of the related Mortgage Note as are applicable to the accrual
of interest
at the Mortgage Rate) and shall be computed on the basis of the
Stated Principal
Balance of such Specially Serviced Mortgage Loan and a 360-day year
consisting
of 30-day months and, in connection with any partial month interest
payment, for
the same period respecting which any related interest payment due
on such
Specially Serviced Mortgage Loan or deemed to be due on such REO
Loan is
computed. The Special Servicing Fee with respect to any Specially
Serviced
Mortgage Loan or REO Loan shall cease to accrue if a Liquidation
Event occurs in
respect thereof. The Special Servicing Fee shall be payable
monthly, on a
loan-by-loan basis, to the extent permitted by Section 3.05(a). The
right to
receive the Special Servicing Fee may not be transferred in whole
or in part
except in connection with the transfer of all of the Special
Servicer's
responsibilities and obligations under this Agreement.
Additional servicing compensation in the form of 100% of all
assumption application fees, assumption fees and modification fees
received on
Specially Serviced Mortgage
-87-
<PAGE>
Loans and 50% of all assumption and modification fees received on
any Mortgage
Loan to the extent not required to be paid to the Servicer pursuant
to Section
3.11(a), but only to the extent actually collected from the related
Mortgagor
and only to the extent that all amounts then due and payable with
respect to the
related Mortgage Loan (including those payable to the Servicer
pursuant to
Section 3.11(a)) have been paid, shall be promptly paid to the
Special Servicer
by the Servicer and shall not be required to be deposited in the
Certificate
Account pursuant to Section 3.04(a). The Special Servicer shall
also be entitled
to additional servicing compensation in the form of a Workout Fee
with respect
to each Corrected Mortgage Loan at the Workout Fee Rate on such
Mortgage Loan
for so long as it remains a Corrected Mortgage Loan. The Workout
Fee with
respect to any Corrected Mortgage Loan will cease to be payable if
such loan
again becomes a Specially Serviced Mortgage Loan; provided, that a
new Workout
Fee will become payable if and when such Mortgage Loan again
becomes a Corrected
Mortgage Loan. If the Special Servicer is terminated (other than
for cause) or
resigns, it shall retain the right to receive any and all Workout
Fees payable
with respect to Mortgage Loans that became Corrected Mortgage Loans
prior to the
time of that termination or resignation. The successor special
servicer will not
be entitled to any portion of such Workout Fees. A Liquidation Fee
will be
payable with respect to each Specially Serviced Mortgage Loan as to
which the
Special Servicer receives any Liquidation Proceeds subject to the
exceptions set
forth in the definition of Liquidation Fee. Notwithstanding
anything to the
contrary described above, no Liquidation Fee will be payable based
on, or out
of, Liquidation Proceeds received in connection with the repurchase
of any
Mortgage Loan by the Mortgage Loan Seller for a breach of
representation or
warranty or for defective or deficient Mortgage Loan documentation,
the purchase
of any Specially Serviced Mortgage Loan by the Directing
Certificateholder
pursuant to Section 3.18(b), the Servicer or the Special Servicer
or the
purchase of all of the Mortgage Loans and REO Properties in
connection with an
optional termination of the Trust Fund pursuant to Section 9.01.
If, however,
Liquidation Proceeds are received with respect to any Corrected
Mortgage Loan
and the Special Servicer is properly entitled to a Workout Fee,
such Workout Fee
will be payable based on and out of the portion of such Liquidation
Proceeds
that constitute principal and/or interest on such Mortgage Loan.
Notwithstanding
anything herein to the contrary, the Special Servicer shall only be
entitled to
receive a Liquidation Fee or Workout Fee, but not both, with
respect to proceeds
on any Mortgage Loan. The Special Servicer will also be entitled to
additional
fees in the form of Penalty Charges on Specially Serviced Mortgage
Loans which
accrued during such time as such Mortgage Loan was a Specially
Serviced Mortgage
Loan, but only to the extent actually collected from the related
Mortgagor and
to the extent that all amounts then due and payable with respect to
the related
Mortgage Loan (including interest on Advances) and all unpaid
Advances and
additional Trust Fund expenses payable during the preceding
12-month period have
been paid. The Special Servicer shall be required to pay out of its
own funds
all expenses incurred by it in connection with its servicing
activities
hereunder (including, without limitation, payment of any amounts,
other than
management fees in respect of REO Properties, due and owing to any
of its
Sub-Servicers and the premiums for any blanket Insurance Policy
obtained by it
insuring against hazard losses pursuant to Section 3.07), if and to
the extent
such expenses are not expressly payable directly out of the
Certificate Account
or the REO Account or as a Servicing Advance, and the Special
Servicer shall not
be entitled to reimbursement therefor except as expressly provided
in this
Agreement.
(c) In determining the compensation of the Servicer or Special
Servicer, as applicable, with respect to Penalty Charges, on any
Distribution
Date, the aggregate Penalty
-88-
<PAGE>
Charges collected on any Mortgage Loan since the prior Distribution
Date shall
be applied (in such order) to reimburse (i) the Servicer or the
Trustee for
interest on Advances on such Mortgage Loan due on such Distribution
Date, (ii)
the Trust Fund for all interest on Advances previously paid to the
Servicer or
the Trustee pursuant to Section 3.05(vi) hereof and (iii) the Trust
Fund for all
unpaid Advances and additional Trust Fund expenses incurred during
the prior 12
months and any Penalty Charges remaining thereafter shall be
distributed pro
rata to the Servicer and the Special Servicer based upon the amount
of Penalty
Charges the Servicer or the Special Servicer would otherwise have
been entitled
to receive during such period without any such application.
Section 3.12 Inspections; Collection of Financial Statements.
(a) The Servicer shall perform (at its own expense), or shall
cause
to be performed (at its own expense), a physical inspection of each
Mortgaged
Property securing a Mortgage Note with a Stated Principal Balance
of (a)
$[2,000,000] or more, at least once every 12 months and (b) less
than
$[2,000,000], at least once every 24 months, in each case
commencing in the
calendar year 20__; provided, however, that if any scheduled
payment becomes
more than 60 days delinquent on the related Mortgage Loan, the
Special Servicer
shall inspect the related Mortgaged Property as soon as practicable
after such
Mortgage Loan becomes a Specially Serviced Mortgage Loan and
annually thereafter
for so long as such Mortgage Loan remains a Specially Serviced
Mortgage Loan.
The cost of such inspection by the Special Servicer shall be an
expense of the
Trust Fund. The Special Servicer or the Servicer, as applicable,
shall prepare
or cause to be prepared a written report of each such inspection
detailing the
condition of the Mortgaged Property and specifying the existence of
(i) any
vacancy in the Mortgaged Property that the preparer of such report
deems
material, (ii) any sale, transfer or abandonment of the Mortgaged
Property of
which it has knowledge, (iii) any adverse change in the condition
of the
Mortgaged Property that the preparer of such report deems material,
(iv) any
visible waste committed on the Mortgaged Property and (v)
photographs of each
inspected Mortgaged Property. The Special Servicer and the Servicer
shall
deliver a copy of each such report prepared by the Special Servicer
and the
Servicer, respectively, to the other, the Trustee and the Paying
Agent within 5
Business Days after request (or if such request is received before
such report
is completed, within 5 Business Days after completion of such
report). The
Paying Agent shall deliver a copy of each such report to each
Rating Agency and
the Controlling Class Certificateholder upon request and to each
Holder of a
Class [F], Class [G] and Class [H] Certificate, upon request (which
such request
may state that such items be delivered until further notice).
(b) The Special Servicer or Servicer, as applicable, shall make
reasonable efforts to collect promptly from each Mortgagor annual
operating
statements and rent rolls of the related Mortgaged Property,
financial
statements of such Mortgagor and any other reports required to be
delivered
under the terms of the Mortgage Loans, if delivery of such items is
required
pursuant to the terms of the related Mortgage.
(c) The Special
Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Servicer, in the case of any non-Specially
Serviced
Mortgage Loan shall make reasonable efforts to collect promptly
from each
related Mortgagor quarterly and annual operating statements,
budgets and rent
rolls of the related Mortgaged Property, and the quarterly
-89-
<PAGE>
and annual financial statements of such Mortgagor, whether or not
delivery of
such items is required pursuant to the terms of the related
Mortgage. In
addition, the Special Servicer shall cause quarterly and annual
operating
statements, budgets and rent rolls to be regularly prepared in
respect of each
REO Property and shall collect all such items promptly following
their
preparation. The Servicer and the Special Servicer shall each
deliver copies of
all the foregoing items so collected thereby to the Paying Agent,
the Depositor
and each other, in each case within 60 days of its receipt thereof,
but in no
event, in the case of annual statements, later than June 30th of
each year. The
Paying Agent shall, upon request, deliver copies of the foregoing
items to the
Underwriters, the Rating Agencies, the Trustee, Controlling
Class
Certificateholders, the Mortgage Loan Sellers or, to the extent the
Certificate
Registrar has confirmed the Ownership Interest in Certificates held
thereby, any
Certificate Owner, a copy (or image in suitable electronic media)
of each such
report prepared by the Servicer or the Special Servicer.
Within 45 days after receipt by the Servicer, as to
non-Specially
Serviced Mortgage Loans, and within 20 days after receipt by the
Special
Servicer, as to Specially Serviced Mortgage Loans, of any annual
operating
statements or rent rolls with respect to any Mortgaged Property or
REO Property,
but in no event later than June 30th of each year, the Servicer or
the Special
Servicer, as applicable, shall, based upon such operating
statements or rent
rolls received, prepare (or, if previously prepared, update) the
analysis of
operations and the Net Operating Income adjustment worksheet (the
"Operating
Statement Analysis Report"), and the Special Servicer shall remit
each Operating
Statement Analysis Report (in CMSA format) prepared by it, together
with the
underlying operating statements and rent rolls, to the Servicer in
a format
reasonably acceptable to the Servicer. All Operating Statements
Analysis Reports
shall be maintained by the Servicer with respect to each Mortgaged
Property and
REO Property, and the Servicer shall forward copies thereof (in
each case,
promptly following the initial preparation and each material
revision thereof)
to the Paying Agent and the Special Servicer, together with the
related
operating statements or rent rolls. The Paying Agent shall, upon
request and to
the extent such items have been delivered to the Paying Agent by
the Servicer,
deliver to the Trustee, the Underwriters, the Rating Agencies, the
Mortgage Loan
Sellers, any Certificateholder or, to the extent the Certificate
Registrar has
confirmed the Ownership Interest in the Certificates held thereby,
any
Certificate Owner, a copy of such Operating Statement Analysis (or
update
thereof) and the related operating statement or rent rolls. The
Servicer shall
maintain an Operating Statement Analysis Report with respect to
each Mortgaged
Property and REO Property. Each Operating Statement Analysis Report
shall be
substantially in the form of Exhibit J attached hereto (or, at the
discretion of
the Servicer, provided that no less information is provided than is
set forth in
Exhibit J in a CMSA format.
(d) At or before 12:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special
Servicer shall
prepare and deliver or cause to be delivered to the Servicer the
following
reports with respect to the Specially Serviced Mortgage Loans and
any REO
Properties, providing the information required of the Special
Servicer in an
electronic format, reasonably acceptable to the Servicer as of
such
Determination Date: (i) a delinquent loan status report, (ii) a
comparative
financial status report, (iii) an historical loss estimate report;
(iv) an
historical loan modification report and (v) an REO status
report.
(e) Not later than 3:30 p.m. (New York City time) on the second
Business Day after each Determination Date, the Servicer shall
prepare (if and
to the extent necessary) and
-90-
<PAGE>
deliver or cause to be delivered to the Trustee and the Paying
Agent data files
relating to the following reports: (i) to the extent received at
the time
required, the most recent delinquent loan status report, historical
loss
estimate report, historical loan modification report and REO status
report
received from the Special Servicer pursuant to Section 3.12(d),
(ii) the most
recent CMSA property file, CMSA loan periodic update file and
comparative
financial status report (in each case combining the reports
prepared by the
Special Servicer and Servicer), and (iii) a watch list report with
information
that is current as of such Determination Date.
(f) The Special Servicer shall deliver to the Servicer the
reports
set forth in Section 3.12(c) and Section 3.12(d), and the Servicer
shall deliver
to the Trustee and the Paying Agent the reports set forth in
Section 3.12(e), in
an electronic format reasonably acceptable to the Special Servicer,
the Paying
Agent, the Servicer and the Trustee. The Servicer may, absent
manifest error,
conclusively rely on the reports to be provided by the Special
Servicer pursuant
to Section 3.12(e) and Section 3.12 (d). The Trustee and the Paying
Agent may,
absent manifest error, conclusively rely on the reports to be
provided by the
Servicer pursuant to Section 3.12(e). In the case of information or
reports to
be furnished by the Servicer to the Trustee and the Paying Agent
pursuant to
Section 3.12(e), to the extent that such information or reports
are, in turn,
based on information or reports to be provided by the Special
Servicer pursuant
to Section 3.12(c) or Section 3.12(d) and to the extent that such
reports are to
be prepared and delivered by the Special Servicer pursuant to
Section 3.12 (c)
or Section 3.12(d) the Servicer shall have no obligation to provide
such
information or reports to the Trustee or the Paying Agent until it
has received
the requisite information or reports from the Special Servicer, and
the Servicer
shall not be in default hereunder due to a delay in providing the
reports
required by Section 3.12(e) caused by the Special Servicer's
failure to timely
provide any information or report required under Section 3.12(c) or
Section
3.12(d) of this Agreement.
(g) Notwithstanding foregoing, however, the failure of the
Servicer
or Special Servicer to disclose any information otherwise required
to be
disclosed by this Section 3.12 shall not constitute a breach of
this Section
3.12 to the extent the Servicer or Special Servicer so fails
because such
disclosure, in the good faith reasonable belief of the Servicer or
the Special
Servicer, as the case may be, would violate any applicable law or
any provision
of a Mortgage Loan document prohibiting disclosure of information
with respect
to the Mortgage Loans or Mortgaged Properties. The Servicer and
Special Servicer
may disclose any such information or any additional information to
any Person so
long as such disclosure is consistent with applicable law and the
Servicing
Standards. The Servicer or the Special Servicer may affix to any
information
provided by it any disclaimer it deems appropriate in its
reasonable discretion
(without suggesting liability on the part of any other party
hereto).
Section 3.13 Reserved.
Section 3.14 Reserved.
Section 3.15 Access to Certain Information.
Each of the Servicer and the Special Servicer shall provide or
cause
to be provided to any Certificateholder or Certificate Owner that
is, or is
affiliated with, a federally insured financial institution, the
Trustee, the
Depositor, each Rating Agency, to the Servicer, or
-91-
<PAGE>
to the Special Servicer, as applicable, and to the OTS, the FDIC,
the Federal
Reserve Board and the supervisory agents and examiners of such
boards and such
corporations, and any other federal or state banking or insurance
regulatory
authority that may exercise authority over any Certificateholder,
and each
Holder of a Class [F], Class [G] and Class [H] Certificate, access
to any
documentation regarding the Mortgage Loans and the Trust Fund
within its control
which may be required by this Agreement or by applicable law. Such
access shall
be afforded without charge but only upon reasonable prior written
request and
during normal business hours at the offices of the Servicer or the
Special
Servicer, as the case may be, designated by it; provided, however,
that the
Class [F], Class [G] and Class [H] Certificateholders and
Certificate Owners
shall be required to pay a reasonable and customary fee for access
to the
aforementioned information, shall pay their own photocopying costs
and execute a
reasonable and customary confidentiality agreement with respect to
such
information. Nothing in this Section 3.15 shall detract from the
obligation of
the Servicer and the Special Servicer to observe any applicable law
prohibiting
disclosure of information with respect to the Mortgagors, and the
failure of the
Servicer or the Special Servicer to provide access as provided in
this Section
3.15 as a result of such obligation shall not constitute a breach
of this
Section 3.15. The Servicer and the Special Servicer may each deny
any of the
foregoing persons access to confidential information or any
intellectual
property which the Servicer or the Special Servicer is restricted
by license or
contract from disclosing. Notwithstanding the foregoing, the
Servicer and the
Special Servicer shall maintain separate from such confidential
information and
intellectual property, all documentation regarding the Mortgage
Loans that is
not confidential.
Section 3.16 Title to REO Property; REO Account.
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or a nominee
thereof on
behalf of the Certificateholders. The Special Servicer, on behalf
of the Trust
Fund, shall sell any REO Property prior to the c
