EXHIBIT 4.1
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BANC OF AMERICA COMMERCIAL MORTGAGE INC.,
Depositor
__________________________________,
Mortgage Loan Seller
__________________________________,
Master Servicer
__________________________________,
Special Servicer
__________________________________,
REMIC Administrator
and
__________________________________,
Trustee
__________________________________,
POOLING AND SERVICING AGREEMENT
Dated as of ____________ ___, 200_
_________________________________
$___________________
Mortgage Pass-Through Certificates
Series 200_-_
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TABLE OF CONTENTS
Section
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ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE
POOL
AND THE CERTIFICATES
1.01 Defined
Terms..........................................................4
1.02 Certain
Calculations in Respect of the Mortgage
Pool..................45
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
2.01 Conveyance of
Mortgage Loans..........................................48
2.02 Acceptance of
REMIC I by Trustee......................................52
2.03 Mortgage Loan
Seller's Repurchase of Mortgage Loans for Document
Defects
and Certain Breaches of Representations and
Warranties........54
2.04 Representations
and Warranties of the Depositor.......................55
2.05 Representations
and Warranties of the Mortgage Loan Seller............56
2.06 Representations
and Warranties of the Master Servicer.................65
2.07 Representations
and Warranties of the Special Servicer................66
2.08 Representations
and Warranties of the Trustee and the REMIC
Administrator.........................................................68
2.09 Issuance of the
Class R-I Certificates; Creation of the REMIC I
Regular
Interests.....................................................69
2.10 Conveyance of
REMIC I Regular Interests; Acceptance of REMIC II by
the
Trustee...........................................................70
2.11 Issuance of the
REMIC II Certificates.................................70
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
3.01 Administration of
the Mortgage Loans..................................71
3.02 Collection of
Mortgage Loan Payments..................................72
3.03 Collection of
Taxes, Assessments and Similar Items; Servicing
Accounts;
Reserve Accounts............................................73
3.04 Certificate
Account and Distribution Account..........................74
3.05 Permitted
Withdrawals From the Certificate Account and the
Distribution
Account..................................................77
3.06 Investment of
Funds in the Certificate Account and the REO Account....81
3.07 Maintenance of
Insurance Policies; Errors and Omissions and
Fidelity
Coverage.....................................................82
3.08 Enforcement of
Due-On-Sale Clauses; Assumption Agreements;
Subordinate
Financing.................................................86
3.09 Realization Upon
Defaulted Mortgage Loans.............................88
3.10 Trustee to
Cooperate; Release of Mortgage Files.......................91
3.11 Servicing
Compensation; Interest on Servicing Advances; Payment of
Certain
Expenses; Obligations of the Trustee Regarding Back-up
Servicing
Advances....................................................92
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3.12 Inspections;
Collection of Financial Statements.......................98
3.13 Annual Statement
as to Compliance....................................101
3.14 Reports by
Independent Public Accountants............................101
3.15 Access to Certain
Information........................................102
3.16 Title to REO
Property; REO Account...................................102
3.17 Management of REO
Property...........................................104
3.18 Sale of Mortgage
Loans and REO Properties............................107
3.19 Additional
Obligations of the Master Servicer and the Special
Servicer.............................................................110
3.20 Modifications,
Waivers, Amendments and Consents......................113
3.21 Transfer of
Servicing Between Master Servicer and Special Servicer;
Record
Keeping.......................................................117
3.22 Sub-Servicing
Agreements.............................................118
3.23 Designation of
Special Servicer by the Majority Certificateholder
of the
Controlling
Class.............................................121
3.24
Confidentiality......................................................122
3.25 No Solicitation
of Prepayments.......................................123
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS AND RELATED MATTERS
4.01 Distributions on
the Certificates....................................124
4.02 Statements to
Certificateholders; Certain Reports by the Master
Servicer
and the Special Servicer....................................132
4.03 P&I
Advances.........................................................140
4.04 Allocation of
Realized Losses and Additional Trust Fund Expenses to
the
Sequential Pay
Certificates......................................142
4.05 Deemed
Distributions on, and Allocations of Realized Losses and
Additional
Trust Fund Expenses to, the REMIC I Regular Interests.....142
ARTICLE V
THE CERTIFICATES
5.01 The
Certificates.....................................................144
5.02 Registration of
Transfer and Exchange of Certificates................144
5.03 Book-Entry
Certificates..............................................151
5.04 Mutilated,
Destroyed, Lost or Stolen Certificates....................152
5.05 Persons Deemed
Owners................................................152
5.06 Certification by
Certificate Owners..................................153
ARTICLE VI
THE DEPOSITOR, THE MORTGAGE LOAN SELLER, THE MASTER SERVICER,
THE
SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
6.01 Liability of the
Depositor, the Mortgage Loan Seller, the Master
Servicer,
the Special Servicer and the REMIC Administrator...........154
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6.02 Merger,
Consolidation or Conversion of the Depositor, the Mortgage
Loan
Seller, the Master Servicer, the Special Servicer or the REMIC
Administrator........................................................154
6.04 Master Servicer,
Special Servicer and REMIC Administrator Not to
Resign...............................................................156
6.05 Rights of the
Depositor and the Trustee in Respect of the Master
Servicer,
the Special Servicer and the REMIC Administrator...........156
ARTICLE VII
DEFAULT
7.01 Events of
Default....................................................158
7.02 Trustee to Act;
Appointment of Successor.............................161
7.03 Notification to
Certificateholders...................................163
7.04 Waiver of Events
of Default..........................................163
7.05 Additional
Remedies of Trustee Upon Event of Default.................163
ARTICLE VIII
CONCERNING THE TRUSTEE
8.01 Duties of
Trustee....................................................165
8.02 Certain Matters
Affecting the Trustee................................166
8.03 Trustee Not
Liable for Validity or Sufficiency of Certificates or
Mortgage
Loans.......................................................167
8.04 Trustee Own
Certificates.............................................168
8.05 Fees of Trustee;
Indemnification of Trustee..........................168
8.06 Eligibility
Requirements for Trustee.................................169
8.07 Resignation and
Removal of the Trustee...............................169
8.08 Successor
Trustee....................................................170
8.09 Merger or
Consolidation of Trustee or Fiscal Agent...................171
8.10 Appointment of
Co-Trustee or Separate Trustee........................171
8.11 Appointment of
Custodians............................................172
8.12 Access to Certain
Information........................................173
8.13 Filings with the
Securities and Exchange Commission..................174
ARTICLE IX
TERMINATION
9.01 Termination Upon
Repurchase or Liquidation of All Mortgage Loans.....176
9.02 Additional
Termination Requirements..................................178
ARTICLE X
ADDITIONAL REMIC PROVISIONS
10.01 REMIC
Administration................................................179
10.02 Depositor,
Master Servicer, Special Servicer and, Trustee to
Cooperate with REMIC
Administrator..................................182
10.03 Fees of the
REMIC Administrator.....................................182
10.04 Use of
Agents.......................................................183
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ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01
Amendment...........................................................184
11.02 Recordation of
Agreement; Counterparts..............................185
11.03 Limitation on
Rights of Certificateholders..........................186
11.04 Governing
Law.......................................................187
11.05
Notices.............................................................187
11.06 Severability of
Provisions..........................................187
11.07 Successors and
Assigns; Beneficiaries...............................188
11.08 Article and
Section Headings........................................188
11.09 Notices to the
Rating [Agencies]....................................188
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This Pooling and Servicing Agreement (this "Agreement"), is
dated
and effective as of __________, 200___ among BANC OF AMERICA
COMMERCIAL MORTGAGE
INC., as Depositor,
_______________________________________________, as Mortgage
Loan Seller, __________________________________, as Master
Servicer,
_________________________, as Special Servicer,
___________________________ as
Trustee and ______________________ as REMIC Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell Certificates, to be issued
hereunder
in multiple Classes, which in the aggregate will evidence the
entire beneficial
ownership interest in the Trust to be created hereunder.
As provided herein, the REMIC Administrator will elect to treat
the
segregated pool of assets consisting of the Mortgage Loans and
certain other
related assets subject to this Agreement as a REMIC for federal
income tax
purposes, and such segregated pool of assets will be designated as
"REMIC I".
The Class R-I Certificates will represent the sole class of
"residual interests"
in REMIC I for purposes of the REMIC Provisions under federal
income tax law.
The following table irrevocably sets forth the designation, the
REMIC I
Remittance Rate, and the initial Uncertificated Principal Balance
for each of
the REMIC I Regular Interests. Determined solely for purposes of
satisfying
Treasury regulation Section 1.860G-1(a)(4)(iii), the "latest
possible maturity
date" for each REMIC I Regular Interest is the first Distribution
Date that is
at least two years after the end of the remaining amortization
schedule of the
Mortgage Loan that has, as of the Closing Date, the longest
remaining
amortization schedule, irrespective of its scheduled maturity. None
of the REMIC
I Regular Interests will be certificated.
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Initial
REMIC I
Uncertificated
Designation
Remittance Rate
Principal Balance
-----------
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A-1-Major
Variable(1)
A-1-Minor
_____% per annum
A-2-Major
Variable(1)
A-2-Minor
_____% per annum
B-Major
Variable(1)
B-Minor
_____% per annum
C-Major
Variable(1)
C-Minor
_____% per annum
D-Major
Variable(1)
D-Minor
_____% per annum
E-Major
Variable(1)
E-Minor
_____% per annum
F-Major
Variable(1)
F-Minor
_____% per annum
G-Major
Variable(1)
G-Minor
_____% per annum
H-Major
Variable(1)
H-Minor
_____% per annum
J-Major
Variable(1)
J-Minor
_____% per annum
K-Major
Variable(1)
K-Minor
_____% per annum
-----------------
(1) Calculated
in accordance with the definition of "REMIC I Remittance Rate".
As provided herein, the REMIC Administrator will elect to treat
the
segregated pool of assets consisting of the REMIC I Regular
Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets
will be
designated as "REMIC II". The Class R-II Certificates will
represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC
Provisions
under federal income tax law. The following table irrevocably sets
forth the
designation, the Pass-Through Rate, and the initial Class Principal
Balance for
each of the Classes of REMIC II Regular Certificates. Determined
solely for
purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each Class of REMIC II Regular
Certificates
is the first Distribution Date that is at least two years after the
end of the
remaining amortization schedule of the Mortgage Loan that has, as
of the Closing
Date, the longest remaining amortization schedule, irrespective of
its scheduled
maturity.
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Initial Class
Designation
Pass-Through Rate
Principal Balance
-----------
-----------------
-----------------
Class A-1
_____% per annum
Class A-2
_____% per annum
Class X
Variable (1)
N/A(2)
Class B
_____% per annum
Class C
_____% per annum
Class D
_____% per annum
Class E
_____% per annum
Class F
_____% per annum
Class G
_____% per annum
Class H
_____% per annum
Class J
_____% per annum
Class K
_____% per annum
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(1) Calculated
in accordance with the definition of "Pass-Through Rate".
(2) The Class X
Certificates will not have a Class Principal Balance; rather,
such Class
of Certificates will accrue interest as provided herein on a
Class
Notional Amount that is, as of any date of determination, equal
to
the then
aggregate Uncertificated Principal Balance of REMIC I Regular
Interest
A-1-Major, REMIC I Regular Interest A-2-Major, REMIC I Regular
Interest
B-Major, REMIC I Regular Interest C-Major, REMIC I Regular
Interest
D-Major, REMIC I Regular Interest E-Major, REMIC I Regular
Interest
F-Major, REMIC I Regular Interest G-Major, REMIC I Regular
Interest
H-Major, REMIC I Regular Interest J-Major and REMIC I Regular
Interest
K-Major.
In consideration of the mutual agreements herein contained, the
Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer,
the Trustee and the REMIC Administrator agree as follows:
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ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE
POOL
AND THE CERTIFICATES
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.
"Accrued Certificate Interest": With respect to any Class of
REMIC
II Regular Certificates, for any Distribution Date, one month's
interest
(calculated on the basis of a 360-day year consisting of twelve
30-day months)
at the Pass-Through Rate applicable to such Class of Certificates
for such
Distribution Date, accrued on the related Class Principal Balance
or Class
Notional Amount, as the case may be, of such Class of Certificates
outstanding
immediately prior to such Distribution Date. The Accrued
Certificate Interest in
respect of any Class of REMIC II Regular Certificates for any
Distribution Date
shall be deemed to have accrued during the applicable Interest
Accrual Period.
"Acquisition Date": With respect to any REO Property, the first
day
on which such REO Property is considered to be acquired by the
Trust within the
meaning of Treasury Regulation Section 1.856-6(b)(1), which is the
first day on
which the Trust is treated as the owner of such REO Property for
federal income
tax purposes.
"Additional Information": As defined in Section 4.02(a).
"Additional Interest": With respect to any Hyper-Amortization
Loan
after its Anticipated Repayment Date, all interest accrued thereon
at the Excess
Interest Rate, the payment of which interest shall, under the terms
of such
Mortgage Loan, be deferred until all interest accrued at the
Mortgage Rate (net
of the Excess Interest Rate) and outstanding principal has been
paid , together
with all interest, if any, accrued at the related Mortgage Rate on
such deferred
interest.
"Additional Trust Fund Expense": Any expense incurred or
shortfall
experienced with respect to the Trust Fund and not otherwise
included in the
calculation of a Realized Loss, that would result in the REMIC II
Regular
Certificateholders' receiving less than the full amount of
principal and/or
interest to which they are entitled on any Distribution Date.
"Adjusted Net Mortgage Rate": With respect to any Mortgage Loan
or
REO Loan, for any Distribution Date, (a) if the related Mortgage
Note provides
that interest accrues on such Mortgage Loan or REO Loan, as the
case may be, on
the basis of a 360-day year consisting of twelve 30-day months (a
"30/360
basis"), a per annum rate equal to the related Net Mortgage Rate in
effect for
such Mortgage Loan as of the commencement of the related
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Collection Period (or, in the case of a Hyper-Amortization Loan or
successor REO
Loan after its Anticipated Repayment Date, if such rate is less,
the related Net
Mortgage Rate in effect for such Mortgage Loan or REO Loan
immediately prior to
its Anticipated Repayment Date), and (b) if the related Mortgage
Note provides
that interest accrues on such Mortgage Loan or REO Loan, as the
case may be,
other than on a 30/360 basis, the annualized rate at which interest
would have
to accrue thereon on a 30/360 basis during the most recently ended
calendar
month in order to produce the actual amount of interest accrued
(or, if such
Mortgage Loan or REO Loan, as the case may be, is prepaid, in whole
or in part,
or otherwise liquidated during such calendar month, that otherwise
would have
accrued) in respect of such Mortgage Loan or REO Loan, as the case
may be, at
the related Net Mortgage Rate in effect for such Mortgage Loan
during such
calendar month (or, in the case of a Hyper-Amortization Loan or
successor REO
Loan after its Anticipated Repayment Date, if such rate is less,
the related Net
Mortgage Rate in effect for such Mortgage Loan or REO Loan
immediately prior to
its Anticipated Repayment Date).
"Administrative Fee Rate": With respect to each Mortgage Loan
and
REO Loan, as specified in the Mortgage Loan Schedule, the sum of
the related
Master Servicing Fee Rate and the Trustee Fee Rate.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Interest": Interest accrued on any Advance at the
Reimbursement Rate and payable to the Master Servicer, the Special
Servicer or
the Trustee, as the case may be, all in accordance with Section
3.11(f) or
Section 4.03(d), as applicable.
"Adverse REMIC Event": With respect to each of REMIC I and REMIC
II,
either (i) the endangerment of the status of such REMIC as a REMIC
or (ii),
except as permitted by Section 3.17(a), the imposition of a tax
upon such REMIC
or any of its assets or transactions (including, without
limitation, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the
Code and the tax
on certain contributions set forth in Section 860G(d) of the
Code).
"Affiliate": With respect to any specified Person, any other
Person
controlling or controlled by or under common control with such
specified Person.
For the purposes of this definition, "control" when used with
respect to any
specified Person means the power to direct the management and
policies of such
Person, directly or indirectly, whether through the ownership of
voting
securities, by contract or otherwise and the terms "controlling"
and
"controlled" have the meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement, together with
all
amendments hereof and supplements hereto.
"Annuity Factor": As defined in Section 4.01(a).
"Anticipated Repayment Date": With respect to any
Hyper-Amortization
Loan, the date specified on the related Mortgage Note, as of which
Additional
Interest shall begin to
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accrue on such Mortgage Loan, which date is prior to the Stated
Maturity Date
for such Mortgage Loan.
"Applicable State Law": For purposes of Article X, the
Applicable
State Law shall be (a) the laws of the State of New York, (b) the
laws of the
states in which the Corporate Trust Office of the Trustee and the
Primary
Servicing Offices of the Master Servicer and the Special Servicer
are located,
(c) the laws of the states in which any Mortgage Loan documents are
held and/or
any REO Properties are located, (d) such other state and local law
whose
applicability shall have been brought to the attention of the
REMIC
Administrator by either (i) an Opinion of Counsel delivered to it
or (ii)
written notice from the appropriate taxing authority as to the
applicability of
such state law, and (e) such other state or local law as to which
the REMIC
Administrator has actual knowledge of applicability.
"Appraisal": With respect to any Mortgaged Property or REO
Property
as to which an appraisal is required to be performed pursuant to
the terms of
this Agreement, a narrative appraisal complying with USPAP (or, in
the case of
Mortgage Loans and REO Loans with a Stated Principal Balance as of
the date of
such appraisal of $1,000,000 or less, a limited appraisal and a
summary report)
that indicates the "market value" of the subject property, as
defined in 12
C.F.R. ss.225.62(g), and is conducted by a Qualified Appraiser.
"Appraisal Reduction Amount": With respect to any Required
Appraisal
Loan, an amount (calculated as of the Determination Date
immediately following
the later of (a) the date on which the most recent Appraisal that
meets the
requirements of Section 3.19(b) in respect of such Required
Appraisal Loan, was
obtained by the Master Servicer or the Special Servicer, as the
case may be, and
(b) the earliest of the relevant dates in respect of such Required
Appraisal
Loan specified in the first sentence of Section 3.19(b) hereof)
equal to the
excess, if any, of (x) the sum of (i) the Stated Principal Balance
of such
Required Appraisal Loan, (ii) to the extent not previously advanced
by or on
behalf of the Master Servicer or the Trustee, all accrued and
unpaid interest
(excluding, in the case of a Hyper-Amortization Loan after its
Anticipated
Repayment Date, Additional Interest) on such Required Appraisal
Loan through the
most recent Due Date prior to such Determination Date at a per
annum rate equal
to the sum of the related Net Mortgage Rate and the Trustee Fee
Rate, (iii) all
accrued but unpaid Master Servicing Fees and Special Servicing Fees
in respect
of such Required Appraisal Loan, (iv) all related unreimbursed
Advances made by
or on behalf of the Master Servicer, the Special Servicer or the
Trustee in
respect of such Required Appraisal Loan, together with all unpaid
Advance
Interest accrued on such Advances, and (v) all currently due but
unpaid real
estate taxes and assessments, insurance premiums and, if
applicable, ground
rents in respect of the related Mortgaged Property or REO Property
(net of any
Escrow Payments or other reserves held by the Master Servicer or
the Special
Servicer with respect to any such item), over (y) 90% of an amount
equal to (i)
the Appraised Value of the related Mortgaged Property or REO
Property, as
applicable, as determined by the most recent relevant Appraisal
acceptable for
purposes of Section 3.19(b) hereof, net of (ii) the amount of any
liens on such
property (other than in respect of items described in clause (x)(v)
above) that
are prior to the lien of the Required Appraisal Loan.
Notwithstanding the
foregoing, if an Appraisal is required to be obtained pursuant to
Section
3.19(b) but has not been obtained within the 30-day period
contemplated by such
section, then until the date such Appraisal is
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obtained the "Appraisal Reduction Amount" for the subject Required
Appraisal
Loan will be deemed to equal 30% of the Stated Principal Balance of
such
Required Appraisal Loan; provided that upon receipt of an Appraisal
acceptable
for purposes of Section 3.19(b) hereof, the Appraisal Reduction
Amount for such
Required Appraisal Loan will be recalculated in accordance with the
preceding
sentence.
"Appraised Value": As of any date of determination, the
appraised
value of a Mortgaged Property based upon the most recent Appraisal
obtained
pursuant to this Agreement.
"Assignment of Leases": With respect to any Mortgaged Property,
any
assignment of leases, rents and profits or similar document or
instrument
executed by the Mortgagor, 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 Final Distribution Date": As defined in Section
4.01(a).
"Assumed Monthly Payment": With respect to any Balloon Mortgage
Loan
for its Stated Maturity Date (provided that such Mortgage Loan has
not been paid
in full, and no other Liquidation Event has occurred in respect
thereof, on or
before the end of the Collection Period in which such Stated
Maturity Date
occurs) and for any subsequent Due Date therefor as of which such
Mortgage Loan
remains outstanding and part of the Trust Fund, if no Monthly
Payment (other
than a delinquent Balloon Payment) is due for such Due Date, the
scheduled
monthly payment of principal and/or interest deemed to be due in
respect thereof
on such Due Date equal to the amount that would have been due in
respect of such
Mortgage Loan on such Due Date if it had been required to continue
to accrue
interest (exclusive, in the case of a Hyper-Amortization Loan after
its
Anticipated Repayment Date, of Additional Interest) in accordance
with its
terms, and to pay principal in accordance with the amortization
schedule (if
any), in effect immediately prior to, and without regard to the
occurrence of,
its most recent scheduled maturity date (as such terms and
amortization schedule
may have been modified, and such maturity date may have been
extended, in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or a modification, waiver or amendment of such Mortgage
Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to
Section
3.20). With respect to any REO Loan, for any Due Date therefor as
of which the
related REO Property remains part of the Trust Fund, the scheduled
monthly
payment of principal and/or interest deemed to be due in respect
thereof on such
Due Date equal to the Monthly Payment that was due (or, in the case
of a Balloon
Mortgage Loan described in the preceding sentence of this
definition, the
Assumed Monthly Payment that was deemed due) in respect of the
related Mortgage
Loan on the last Due Date prior to its becoming an REO Loan.
"Available Distribution Amount": With respect to any
Distribution
Date, an amount equal to (a) the balance on deposit in the
Distribution Account
as of 11:30 a.m. (New York City time) on such Distribution Date (or
such later
time on such date as of which
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distributions are made on the Certificates), including, without
limitation, if
and to the extent on deposit therein as of such time, the Master
Servicer
Remittance Amount for the related Master Servicer Remittance Date,
any P&I
Advances made by the Master Servicer or the Trustee to cover
uncollected Monthly
Payments due and/or Assumed Monthly Payments deemed due during the
related
Collection Period, and any payments made by the Master Servicer to
cover
Prepayment Interest Shortfalls incurred during the related
Collection Period,
net of (b) any portion of the amounts described in clause (a) of
this definition
that represents one or more of the following: (i) collected Monthly
Payments
that are due on a Due Date following the end of the related
Collection Period,
(ii) any payments of principal (including, without limitation,
Principal
Prepayments) and interest, Liquidation Proceeds and Insurance
Proceeds received
after the end of the related Collection Period, (iii) Prepayment
Premiums, (iv)
any amounts payable or reimbursable to any Person from the
Distribution Account
pursuant to any of clauses (ii) through (vi) of Section 3.05(b),
and (v) any
amounts deposited in the Distribution Account in error; provided
that the
Available Distribution Amount for the Final Distribution Date shall
be
calculated without regard to clauses (b)(i) and (b)(ii) of this
definition.
"Balloon
Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the
Closing Date
provides for an amortization schedule extending beyond its Stated
Maturity Date
and as to which, in accordance with such terms, the Monthly Payment
due on its
Stated Maturity Date is at least two times larger than the Monthly
Payment due
on the Due Date next preceding its Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as
of
any date of determination, the Monthly Payment payable on the
Stated Maturity
Date of such Mortgage Loan.
"Bank": As defined in Section 2.08.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from
time
to time (Title 11 of the United States Code).
"Base Prospectus": That certain prospectus dated __________ __,
200__, relating to trust funds established by the Depositor and
publicly offered
mortgage pass-through certificates evidencing interests
therein.
"Book-Entry Certificate": Any Certificate registered in the name
of
the Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day
on
which banking institutions in New York, New York, _____________ and
the cities
in which the Primary Servicing Offices of the Master Servicer and
Special
Servicer and the Corporate Trust Office of the Trustee are located,
are
authorized or obligated by law or executive order to remain
closed.
"CERCLA": The Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended.
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<PAGE>
"Certificate": Any one of the Depositor's Mortgage Pass-Through
Certificates, Series 200___-____ as executed by the Trustee and
authenticated
and delivered hereunder by the Certificate Registrar.
"Certificate Account": The segregated account or accounts
created
and maintained by the Master Servicer pursuant to Section 3.04(a)
on behalf of
the Trustee in trust for Certificateholders, which shall be
entitled
"_________________", as Master Servicer, in trust for the
registered holders of
Banc of America Commercial Mortgage Inc., Mortgage Pass-Through
Certificates,
Series 200___-___.
"Certificate Factor":
With respect to any Class of REMIC II Regular
Certificates, as of any date of determination, a fraction,
expressed as a
decimal carried to eight places, the numerator of which is the then
related
Class Principal Balance or Class Notional Amount, as the case may
be, and the
denominator of which is the related Initial Class Principal Balance
or Initial
Class Notional Amount, as the case may be.
"Certificate Notional Amount": With respect to any Class X
Certificate, the hypothetical or notional principal amount on which
such
Certificate accrues interest, which, as of any date of
determination, is equal
to the product of (a) the Percentage Interest evidenced by such
Certificate,
multiplied by (b) the then Class Notional Amount of the Class X
Certificates.
"Certificate Owner": With respect to a Book-Entry Certificate,
the
Person who is the beneficial owner of such Certificate as reflected
on the books
of the Depository or on the books of a Depository Participant or on
the books of
an indirect participating brokerage firm for which a Depository
Participant acts
as agent.
"Certificate Principal Balance": With respect to any Sequential
Pay
Certificate, as of any date of determination, the then outstanding
principal
amount of such Certificate equal to the product of (a) the
Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class
Principal
Balance of the Class of Certificates to which such Certificate
belongs.
"Certificate Register" and "Certificate Registrar": The
register
maintained and the registrar appointed pursuant to Section
5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided
that solely for
the purposes of giving any consent, approval or waiver pursuant to
this
Agreement, any Certificate registered in the name of the Depositor,
the Mortgage
Loan Seller, the Master Servicer, the Special Servicer, the REMIC
Administrator
or the Trustee or any Affiliate of any of them shall be deemed not
to be
outstanding, and the Voting Rights to which any of them 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, except as otherwise provided in Sections 7.04 and 11.01
or except in
connection with the Controlling Class exercising its rights under
Section 3.23,
or unless such Persons collectively own an entire Class of
Certificates and only
the Holders of such Class of Certificates are entitled to grant
such consent,
approval or waiver. The Certificate Registrar shall be entitled to
request and
rely
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<PAGE>
upon a certificate of the Depositor, the Mortgage Loan Seller, the
Master
Servicer, the Special Servicer or if other than the Trustee, the
REMIC
Administrator, as the case may be, 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.
"Certificateholder Reports": As defined in Section 4.02(a).
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificate": Any one of the Class A-1 or Class A-2
Certificates.
"Class A-1 Certificate": Any one of the Certificates with a
"Class
A-1" designation on the face thereof, substantially in the form of
Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a
"Class
A-2" designation on the face thereof, substantially in the form of
Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class
B"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class
C"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class
D"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class E Certificate": Any one of the Certificates with a "Class
E"
designation on the face thereof, substantially in the form of
Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class
F"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class
G"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
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<PAGE>
"Class H Certificate": Any one of the Certificates with a "Class
H"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class J Certificate": Any one of the Certificates with a "Class
J"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class K Certificate": Any one of the Certificates with a "Class
K"
designation on the face thereof, substantially in the form of
Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II
for purposes of
the REMIC Provisions.
"Class Notional Amount": The aggregate hypothetical or notional
principal amount on which the Class X Certificates collectively
accrue interest
equal to the aggregate of the Uncertificated Principal Balances of
the Major
REMIC I Regular Interests outstanding from time to time (rounded to
the nearest
whole dollar during the period up to and including the initial
Distribution
Date).
"Class Principal Balance": The aggregate principal amount of
any
Class of Sequential Pay Certificates outstanding as of any date
of
determination. As of the Closing Date, the Class Principal Balance
of each such
Class of Certificates shall equal the Initial Class Principal
Balance thereof.
On each Distribution Date, the Class Principal Balance of each
Class of the
Sequential Pay Certificates shall be permanently reduced by the
amount of any
distributions of principal made thereon on such Distribution Date
pursuant to
Section 4.01(a) and, if and to the extent appropriate, shall be
further
permanently reduced on such Distribution Date as provided in
Section 4.04.
"Class R-I Certificate": Any one of the Certificates with a
"Class
R-I" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing the sole class of "residual
interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a
"Class
R-II" designation on the face thereof, substantially in the form of
Exhibit A-5
attached hereto, and evidencing the sole class of "residual
interests" in REMIC
II for purposes of the REMIC Provisions.
"Class X Certificate": Any one of the Certificates with a "Class
X"
designation on the face thereof, substantially in the form of
Exhibit A-1, and
evidencing a "regular interest" in REMIC II for purposes of the
REMIC
Provisions.
"Closing Date": __________ __, 200__
"Code": The Internal Revenue Code of 1986, as amended.
"Collection Period": With respect to any Distribution Date, the
period commencing immediately following the Determination Date in
the calendar
month preceding
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<PAGE>
the month in which such Distribution Date occurs (or, in the case
of the initial
Distribution Date, commencing immediately following the Cut-off
Date) and ending
on and including the Determination Date in the calendar month in
which such
Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Confidential Information": As defined in Section 3.28.
["Controlling Class": As of any date of determination, the
outstanding Class of Sequential Pay Certificates with the lowest
Payment
Priority (the Class A Certificates being treated as a single Class
for this
purpose) that has a then outstanding Class Principal Balance at
least equal to
25% of the Initial Class Principal Balance thereof (or, if no Class
of
Sequential Pay Certificates has a Class Principal Balance at least
equal to 25%
of the Initial Class Principal Balance thereof, then the
"Controlling Class"
shall be the outstanding Class of Sequential Pay Certificates with
the then
largest outstanding Class Principal Balance).]
"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______________________________________.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a
Specially Serviced Mortgage Loan but has ceased to be such in
accordance with
the definition of "Specially Serviced Mortgage Loan" (other than by
reason of a
Liquidation Event occurring in respect of such Mortgage Loan or a
related
Mortgaged Property becoming an REO Property).
"Corresponding Major REMIC I Regular Interest": With respect to
any
Class of Sequential Pay Certificates, the Major REMIC I Regular
Interest that
has, without regard to the reference to "Major", the same
alphabetical (and, if
applicable, numerical) designation as the Class designation for
such Class of
Sequential Pay Certificates.
"Corresponding Minor REMIC I Regular Interest": With respect to
any
Class of Sequential Pay Certificates, the Minor REMIC I Regular
Interest that
has, without regard to the reference to "Minor", the same
alphabetical (and, if
applicable, numerical) designation as the Class designation for
such Class of
Sequential Pay Certificates.
"CPR": As defined in the Base Prospectus.
"Cross-Collateralized Mortgage Loan": Any Mortgage Loan that is
cross-collateralized and cross-defaulted with one or more other
Mortgage Loans.
"Current Principal Distribution Amount": With respect to any
Distribution Date, an amount (calculated in accordance with Section
1.02) equal
to the aggregate of, without duplication:
(a)
the principal portions of all Monthly Payments (other than
Balloon
Payments) and any Assumed Monthly Payments due or deemed due,
as
the case
may
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<PAGE>
be, in
respect of the Mortgage Loans and any REO Loans for their
respective
Due Dates occurring during the related Collection Period;
(b) all Principal Prepayments received on the Mortgage Loans
during
the
related Collection Period;
(c) with respect to any Balloon Mortgage Loan as to which the
related
Stated Maturity Date occurred during or prior to the related
Collection
Period, any payment of principal (exclusive of any Principal
Prepayment
and any amount described in subclause (d) below) that was made
by or on
behalf of the related Mortgagor during the related Collection
Period,
net of any portion of such payment that represents a recovery
of
the
principal portion of any Monthly Payment (other than a Balloon
Payment) due, or
the principal portion of any Assumed Monthly Payment
deemed
due, in respect of such Balloon Mortgage Loan on a Due Date
during
or prior
to the related Collection Period and not previously recovered;
(d) all Liquidation Proceeds and Insurance Proceeds received on
or
in respect
of the Mortgage Loans during the related Collection Period that
were
identified and applied by the Master Servicer as recoveries of
principal
thereof, in each case net of any portion of such amounts that
represents
a recovery of the principal portion of any Monthly Payment
(other
than a Balloon Payment) due, or of the principal portion of any
Assumed
Monthly Payment deemed due, in respect of any such Mortgage
Loan
on a Due
Date during or prior to the related Collection Period and not
previously
recovered; and
(e) all Liquidation Proceeds, Insurance Proceeds and REO
Revenues
received
on or in respect of any REO Properties during the related
Collection
Period that were identified and applied by the Master Servicer
as
recoveries of principal of the related REO Loans, in each case net
of
any
portion of such amounts that represents a recovery of the
principal
portion of
any Monthly Payment (other than a Balloon Payment) due, or of
the
principal portion of any Assumed Monthly Payment deemed due, in
respect of
any such REO Loan or the predecessor Mortgage Loan on a Due
Date
during or prior to the related Collection Period and not
previously
recovered.
"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, the Mortgage Loan Seller or an
Affiliate of
either.
"Cut-off Date": __________, 200__.
"Cut-off Date Balance": With respect to any Mortgage Loan, the
outstanding principal balance of such Mortgage Loan as of the
Cut-off Date, net
of all unpaid payments of principal due in respect thereof on or
before such
date.
"Debt Service Coverage Ratio": [With respect to any Mortgage
Loan,
as of any date of determination, and calculated without regard to
any
cross-collateralization feature of such Mortgage Loan, the ratio of
(x) the Net
Operating Income (before payment of any debt
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<PAGE>
service on such Mortgage Loan) generated by the related Mortgaged
Property
during the most recently ended period of not more than twelve
months or less
than three months for which financial statements (whether or not
audited) have
been received by or on behalf of the Mortgage Loan Seller (prior to
the Closing
Date) or the Master Servicer or Special Servicer (following the
Closing Date)
(such Net Operating Income to be annualized if the relevant period
is less than
twelve months), to (y) the product of the amount of the Monthly
Payment in
effect for such Mortgage Loan as of such date of determination,
multiplied by
12].
"Default Charges": Any and all Default Interest and late
payment
charges paid or payable, as the context requires, in connection
with a default
under a Mortgage Loan or any successor REO Loan.
"Default Interest": With respect to any Mortgage Loan (or
related
REO Loan), any amounts collected thereon, other than late payment
charges and
Prepayment Premiums, that represent interest (exclusive, if
applicable, of
Additional Interest) in excess of interest accrued on the principal
balance of
such Mortgage Loan (or REO Loan) at the related Mortgage Rate, such
excess
interest arising out of a default under such Mortgage Loan.
"Defaulted Mortgage Loan": Any Specially Serviced Mortgage Loan
as
to which a material default has occurred or a default in respect of
any payment
thereon is reasonably foreseeable, and which the Special Servicer
has
determined, in its reasonable and good faith judgment, will become
the subject
of a foreclosure sale or similar proceedings (the basis for which
determination
shall be set forth in an Officer's Certificate to be delivered to
the Master
Servicer and the Trustee).
"Definitive Certificate": As defined in Section 5.03(a).
"Delinquent Loan Status Report": A report or reports setting
forth,
among other things, those Mortgage Loans which, as of the close of
business on
the last day of the most recently ended calendar month were (i)
delinquent 30-59
days, (ii) delinquent 60-89 days, (iii) delinquent 90 days or more,
(iv) current
but specially serviced, (v) in foreclosure but as to which the
related Mortgaged
Property had not become REO Property, or (vi) related to a
Mortgaged Property
which had become REO Property, substantially in the form, and
including such
additional information in respect of each such Mortgage Loan, as is
contemplated
on page [B-6] of the Prospectus Supplement.
"Depositor": Banc of America Commercial Mortgage Inc., 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.
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<PAGE>
"Depository Participant": A broker, dealer, bank or other
financial
institution or other Person for whom from time to time the
Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date": With respect to any Distribution Date,
the
[10]th day of the month in which such Distribution Date occurs, or
if such
[10]th day is not a Business Day, the Business Day immediately
preceding.
"Directly Operate": With respect to any REO Property, the
furnishing
or rendering of services to the tenants thereof, the management or
operation of
such REO Property, the holding of such REO Property primarily for
sale to
customers (other than the sale of an REO Property pursuant to
Section 3.18(d)),
the performance of any construction work thereon or any use of such
REO Property
in a trade or business conducted by REMIC I other than through an
Independent
Contractor; provided, however, that the Special Servicer (or any
Sub-Servicer on
behalf of the Special Servicer) shall not be considered to Directly
Operate an
REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf
of the Special Servicer) establishes rental terms, chooses tenants,
enters into
or renews leases, deals with taxes and insurance, or makes
decisions as to, or
funds, repairs or capital expenditures with respect to such REO
Property
(including, without limitation, construction activity to effect
repairs or in
conjunction with leasing activity).
"Disqualified Organization": Any of the following: (i) the
United
States or a possession thereof, any State or any political
subdivision thereof,
or any agency or instrumentality of any of the foregoing (other
than an
instrumentality which is a corporation if all of its activities are
subject to
tax and, except for Freddie Mac, a majority of its board of
directors is not
selected by any such governmental unit), (ii) a foreign
government,
international organization, or any agency or instrumentality of
either of the
foregoing, (iii) any organization (except certain farmers'
cooperatives
described in Section 521 of the Code) which is exempt from the tax
imposed by
Chapter 1 of the Code (unless such organization is subject to the
tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv)
rural
electric and telephone cooperatives described in Section 1381 of
the Code or (v)
any other Person so designated by the REMIC Administrator based
upon an Opinion
of Counsel that the holding of an Ownership Interest in a Residual
Certificate
by such Person may cause the Trust 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 Class
of
REMIC II Regular Certificates, for any Distribution Date, the
Accrued
Certificate Interest in respect of such Class of Certificates for
such
Distribution Date, reduced (to not less than zero) by that portion,
if any, of
the Net Aggregate Prepayment Interest Shortfall for such
Distribution Date
allocated to such Class of Certificates as set forth below. The Net
Aggregate
Prepayment Interest Shortfall, if any, for each Distribution Date
shall be
allocated to the respective Classes of REMIC II Regular
Certificates on such
Distribution Date as follows: first, to the respective
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<PAGE>
Classes of REMIC II Regular Certificates (other than the Senior
Certificates),
sequentially in reverse alphabetical order of Class designation, in
each case up
to an amount equal to the lesser of any remaining unallocated
portion of such
Net Aggregate Prepayment Interest Shortfall and any Accrued
Certificate Interest
in respect of the particular Class of Certificates for such
Distribution Date;
and thereafter, if and to the extent that any portion of such Net
Aggregate
Prepayment Interest Shortfall remains unallocated, among the
respective Classes
of Senior Certificates, up to, and pro rata in accordance with, the
respective
amounts of Accrued Certificate Interest for each such Class of
Senior
Certificates for such Distribution Date.
"Distribution Account": The segregated account or accounts
created
and maintained by the Trustee pursuant to Section 3.04(b) in trust
for the
Certificateholders, which shall be entitled "_________________, as
Trustee, in
trust for the registered holders of Banc of America Commercial
Mortgage Inc.,
Mortgage Pass-Through Certificates, Series 2008-1".
"Distribution Date": The [15]th day of any month, or if such
[15]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).
"Document Defect": As defined in Section 2.02(e).
"Due Date": With respect to (i) any Mortgage Loan on or prior to
its
Stated Maturity Date, the day of the month set forth in the related
Mortgage
Note on which each Monthly Payment on such Mortgage Loan is
scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date,
the day of the
month set forth in the related Mortgage Note on which each Monthly
Payment on
such Mortgage Loan had been scheduled to be first due; and (iii)
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.
"Eligible Account": Any of (i) an account maintained with a
federal
or state chartered depository institution or trust company,
including, without
limitation, the Trustee (if it meets the following rating
criteria), the
long-term unsecured debt obligations of which are rated no less
than "____" by
______ and "____" by _____ (if the deposits are to be held in the
account for
more than 30 days), or the short-term unsecured debt obligations of
which are
rated no less than "_____" by _________ and "_____" by _______ (if
the deposits
are to be held in the account for 30 days or less), in each case,
at any time
funds are on deposit therein, (ii) a segregated trust account or
accounts
maintained with the corporate trust department of a
___________________, (iii) a
segregated trust account or accounts maintained with the corporate
trust
department of a _____________________, and subject to regulations
regarding
fiduciary funds on deposit therein substantially similar to 12
C.F.R. ss.
9.10(b), or (iv) any other account which would not result in the
downgrade,
qualification or withdrawal of the rating then assigned by either
Rating Agency
to any Class of Certificates (as confirmed in writing by each
Rating Agency).
"Emergency Advance": Any Servicing Advance, whether or not it is
a
Servicing Advance that, pursuant hereto, the Special Servicer is
required to
request the Master
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<PAGE>
Servicer to make, that must be made within 10 days of the Special
Servicer's
becoming aware that it must be made in order to avoid any material
penalty, any
material harm to a Mortgaged Property or any other material adverse
consequence
to the Trust Fund.
"ERISA": The Employee Retirement Income Security Act of 1974,
as
amended.
"Escrow Payment": Any payment received by the Master Servicer or
the
Special Servicer for the account of any Mortgagor for application
toward the
payment of real estate taxes, assessments, insurance premiums and
similar items
in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in
Section
7.01(a).
"Excess Interest Rate": With respect to any Hyper-Amortization
Loan
after its Anticipated Repayment Date, the incremental increase in
the Mortgage
Rate for such Mortgage Loan resulting from the passage of such
Anticipated
Repayment Date.
"Exchange Act": The Securities Exchange Act of 1934, as
amended.
"Exemption-Favored Party": Any of (i) Bank of America
Corporation
("Bank of America") (successor in interest to NationsBank
Corporation), (ii) any
Person directly or indirectly, through one or more intermediaries,
controlling,
controlled by or under common control with Bank of America and
(iii) any member
of a syndicate or selling group of which Bank of America or a
person described
in clause (ii) is a manager or co-manager with respect to a Class
of
Certificates.
"Fannie Mae": The Federal National Mortgage Association or any
successor.
"FDIC": The Federal Deposit Insurance Corporation or any
successor.
"Final Distribution Date": The final Distribution Date on which
any
distributions are to be made on the Certificates as contemplated by
Section
9.01.
"Final Recovery Determination": A determination by the Special
Servicer with respect to any defaulted Mortgage Loan or REO
Property and,
accordingly, the related REO Loan (other than a Mortgage Loan or
REO Property,
as the case may be, purchased by the Mortgage Loan Seller or an
Affiliate of the
Mortgage Loan Seller pursuant to Section 2.03, by the Majority
Certificateholder
of the Controlling Class pursuant to Section 3.18(b), by the Master
Servicer or
the Special Servicer pursuant to Section 3.18(c) or by the Master
Servicer or
the Majority Certificateholder of the Controlling Class pursuant to
Section
9.01) that there has been a recovery of all Insurance Proceeds,
Liquidation
Proceeds and other payments or recoveries (including, without
limitation, by
reason of a sale of such Mortgage Loan or REO Property pursuant to
Section
3.18(d) hereof) that the Special Servicer has determined, in
accordance with the
Servicing Standard, exercised without regard to any obligation of
the Master
Servicer or Special Servicer to make payments from its own funds
pursuant to
Section 3.07(b), will be ultimately recoverable.
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"Freddie Mac": The Federal Home Loan Mortgage Corporation or
any
successor.
"Ground Lease": The ground lease pursuant to which any
Mortgagor
holds a leasehold interest in the related Mortgaged Property.
"Group": A group of Mortgage Loans that are cross-collateralized
and
cross-defaulted with each other.
"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 ("PCBs"),
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.
"Health Care Loans": Those Mortgage Loans identified on the
Mortgage
Loan Schedule by control numbers ___________________ and, as of the
date hereof,
secured by Mortgages on Mortgaged Properties operated as health
care-related
facilities.
"Historical Loan Modification Report": A report or reports
setting
forth, among other things, those Mortgage Loans which, as of the
close of
business on the Determination Date immediately preceding the
preparation of such
report or reports, have been modified pursuant to this Agreement
(i) during the
Collection Period ending on such Determination Date and (ii) since
the Cut-off
Date, showing the original and the revised terms thereof,
substantially in the
form, and including such additional information in respect of each
such Mortgage
Loan, as is contemplated on page B-12 of the Prospectus
Supplement.
"Historical Loss Report": A report or reports setting forth,
among
other things, as of the close of business on the Determination Date
immediately
preceding the preparation of such report or reports, (i) the amount
of
Liquidation Proceeds received, and Liquidation Expenses incurred,
both during
the Collection Period ending on such Determination Date and
historically, and
(ii) the amount of Realized Losses occurring during such Collection
Period and
historically, set forth on a Mortgage Loan-by-Mortgage Loan and
REO
Property-by-REO Property basis, substantially in the form, and
including such
additional information in respect of each Defaulted Mortgage Loan
and REO
Property as to which a Final Recovery Determination has been made,
as is
contemplated on page B-13 of the Prospectus Supplement.
"HUD-Approved Servicer": A servicer that is a mortgagee approved
by
the Secretary of Housing and Urban Development pursuant to Sections
207 and 211
of the National Housing Act.
"Hyper-Amortization Loan": A Mortgage Loan that provides for,
if
such Mortgage Loan is not paid in full prior to or on its
Anticipated Repayment
Date, (i) the
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accrual of Additional Interest thereon and (ii) the application (in
reduction of
the outstanding principal of such Mortgage Loan) of an amount (in
addition to
the principal portion of the required Monthly Payment) equal to the
excess (if
any) of certain net cash flow from the related Mortgaged Property
over the
related Monthly Payment.
"Independent": When used with respect to any specified Person,
any
such Person who (i) is in fact independent of the Depositor, the
Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, the
REMIC
Administrator and any and all Affiliates thereof, (ii) does not
have any direct
financial interest in or any material indirect financial interest
in any of the
Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer,
the Trustee, the REMIC Administrator or any Affiliate thereof, and
(iii) is not
connected with the Depositor, the Mortgage Loan Seller, the Master
Servicer, the
Special Servicer, the Trustee, the REMIC Administrator or any
Affiliate thereof
as an officer, employee, promoter, underwriter, trustee, partner,
director or
Person performing similar functions; provided, however, that a
Person shall not
fail to be Independent of the Depositor, the Mortgage Loan Seller,
the Master
Servicer, the Special Servicer, the Trustee, the REMIC
Administrator or any
Affiliate thereof merely because such Person is the beneficial
owner of 1% or
less of any class of securities issued by the Depositor, the
Mortgage Loan
Seller, the Master Servicer, the Special Servicer, the Trustee, the
REMIC
Administrator or any Affiliate thereof, as the case may be.
"Independent Contractor": Any Person that would be an
"independent
contractor" with respect to REMIC I within the meaning of Section
856(d)(3) of
the Code if REMIC I were a real estate investment trust (except
that the
ownership test set forth in that section shall be considered to be
met by (i)
any Person that owns, directly or indirectly, 35 percent or more of
any Class of
Certificates, or such other interest in any Class of Certificates
as is set
forth in an Opinion of Counsel, which shall not be an expense of
the Trustee,
the REMIC Administrator or the Trust, delivered to the Trustee and
the REMIC
Administrator), so long as REMIC I does not receive or derive any
income from
such Person and provided that the relationship between such Person
and REMIC I
is at arm's length, all within the meaning of Treasury Regulation
Section
1.856-4(b)(5), or (ii) any other Person upon receipt by the Trustee
and the
REMIC Administrator of an Opinion of Counsel, which shall be at no
expense to
the Trustee, the REMIC Administrator or the Trust, to the effect
that the taking
of any action in respect of any REO Property by such Person,
subject to any
conditions therein specified, that is otherwise herein contemplated
to be taken
by an Independent Contractor will not cause such REO Property to
cease to
qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of
the Code, or cause any income realized in respect of such REO
Property to fail
to qualify as Rents from Real Property.
"Initial Class Notional Amount": With respect to the Class X
Certificates, the initial Class Notional Amount thereof as of the
Closing Date
equal to $___________________.
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"Initial Class Principal Balance": With respect to any Class of
Sequential Pay Certificates, the initial Class Principal Balance
thereof as of
the Closing Date, in each case as set forth below:
Initial Class
Class
Principal Balance
-----
-----------------
Class A-1
$____________
Class A-2
$____________
Class B
$____________
Class C
$____________
Class D
$____________
Class E
$____________
Class F
$____________
Class G
$____________
Class H
$____________
Class J
$____________
Class K
$____________
"Initial Pool Balance": The aggregate Cut-off Date Balance of
all
the Mortgage Loans included in the Trust Fund as of the Closing
Date.
"Insurance Policy": With respect to any Mortgage Loan or REO
Property, 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) or in respect of
such REO
Property, as the case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy,
to
the extent such proceeds are not applied to the restoration of the
related
Mortgaged Property or REO Property or released to the Mortgagor, in
either case,
in accordance with the Servicing Standard.
"Interest Accrual Period": With respect to each REMIC I Regular
Interest and each Class of REMIC II Regular Certificates, for any
Distribution
Date, the calendar month immediately preceding the month in which
such
Distribution Date occurs.
"Interest Only Certificate": Any Class X Certificate.
"Interested Person": The Depositor, the Mortgage Loan Seller,
the
Master Servicer, the Special Servicer, any Holder of a Certificate,
or any
Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"IRS": The Internal Revenue Service or any successor.
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"Issue Price": With respect to each Class of Certificates, the
"issue price" as defined in the Code and Treasury regulations
promulgated
thereunder.
"Late Collections": With respect to any Mortgage Loan, all
amounts
received thereon during any Collection Period, whether as payments,
Insurance
Proceeds, Liquidation Proceeds or otherwise, which represent late
collections of
the principal and/or interest portions of a Monthly Payment (other
than a
Balloon Payment) or an Assumed Monthly Payment in respect of such
Mortgage Loan
due or deemed due, as the case may be, for a Due Date in a previous
Collection
Period, or for a Due Date coinciding with or preceding the Cut-off
Date, and not
previously received or recovered. With respect to any REO Loan, all
amounts
received in connection with the related REO Property during any
Collection
Period, whether as Insurance Proceeds, Liquidation Proceeds, REO
Revenues or
otherwise, which represent late collections of the principal and/or
interest
portions of a Monthly Payment (other than a Balloon Payment) or an
Assumed
Monthly Payment in respect of the related Mortgage Loan or of an
Assumed Monthly
Payment in respect of such REO Loan due or deemed due, as the case
may be, for a
Due Date in a previous Collection Period and not previously
received or
recovered. The term "Late Collections" shall specifically exclude
any Default
Charges.
"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 the Mortgage Loan Seller or any Affiliate
thereof
pursuant to Section 2.03; or (iv) such Mortgage Loan is purchased
by the
Majority Certificateholder of the Controlling Class pursuant to
Section 3.18(b),
by the Master Servicer or the Special Servicer pursuant to Section
3.18(c), or
by the Master Servicer or the Majority Certificateholder of the
Controlling
Class pursuant to Section 9.01. With respect to any REO Property
(and the
related REO Loan), any of the following events: (x) a Final
Recovery
Determination is made with respect to such REO Property; or (y)
such REO
Property is purchased by the Master Servicer or the Majority
Certificateholder
of the Controlling Class pursuant to Section 9.01.
"Liquidation Expenses": All customary, reasonable and necessary
"out
of pocket" costs and expenses due and owing (but not otherwise
covered by
Servicing Advances) in connection with the liquidation of any
Specially Serviced
Mortgage Loan or REO Property pursuant to Section 3.09 or 3.18
(including,
without limitation, legal fees and expenses, committee or referee
fees and, if
applicable, brokerage commissions and conveyance taxes).
"Liquidation Fee": With respect to each Specially Serviced
Mortgage
Loan or REO Property (other than any Specially Serviced Mortgage
Loan or REO
Property repurchased (x) by the Mortgage Loan Seller or any
Affiliate thereof
pursuant to Section 2.03 within 120 days of the Mortgage Loan
Seller's notice or
discovery of the breach or Document Defect giving rise to such
repurchase
obligation, (y) by the Majority Certificateholder of the
Controlling Class, the
Master Servicer or the Special Servicer pursuant to Section 3.18 or
(z) by the
Master Servicer or the Majority Certificateholder of the
Controlling Class
pursuant to Section 9.01), the fee designated as such and payable
to the Special
Servicer pursuant to the fourth paragraph of Section 3.11(c).
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"Liquidation Fee Rate": With respect to each Specially Serviced
Mortgage Loan or REO Property as to which a Liquidation Fee is
payable, 1.0%.
"Liquidation Proceeds": All cash amounts (other than Insurance
Proceeds and REO Revenues) received by the Master Servicer or the
Special
Servicer in connection with: (i) the taking of all or a part of a
Mortgaged
Property by exercise of the power of eminent domain or
condemnation; (ii) the
liquidation of a Mortgaged Property or other collateral
constituting, or that
constituted, security for a defaulted Mortgage Loan, through
trustee's sale,
foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof
required to be released to the related Mortgagor in accordance with
applicable
law and the terms and conditions of the related Mortgage Note and
Mortgage;
(iii) the realization upon any deficiency judgment obtained against
a Mortgagor
or any guarantor; (iv) the purchase of a Defaulted Mortgage Loan by
the Majority
Certificateholder of the Controlling Class pursuant to Section
3.18(b) or by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c)
or any other
sale thereof pursuant to Section 3.18(d); (v) the repurchase of a
Mortgage Loan
by the Mortgage Loan Seller or any Affiliate thereof pursuant to
Section 2.03;
or (vi) the purchase of a Mortgage Loan or REO Property by the
Master Servicer
or the Majority Certificateholder of the Controlling Class pursuant
to Section
9.01.
"Lost Coupon Amount":
As defined in Section 4.01(a).
"Major REMIC I Regular Interests": Collectively, REMIC I
Regular
Interest A-1-Major, REMIC I Regular Interest A-2-Major, REMIC I
Regular Interest
B-Major, REMIC I Regular Interest C-Major, REMIC I Regular Interest
D-Major,
REMIC I Regular Interest E-Major, REMIC I Regular Interest F-Major,
REMIC I
Regular Interest G-Major, REMIC I Regular Interest H-Major, REMIC I
Regular
Interest J-Major and REMIC I Regular Interest K-Major.
"Majority Certificateholder": With respect to any specified Class
or
Classes of Certificates, as of any date of determination, any
Holder or
particular group of Holders of Certificates of such Class or
Classes, as the
case may be, entitled to a majority of the Voting Rights allocated
to such Class
or Classes, as the case may be.
"Master Servicer":___________________________ its successor in
interest or any successor master servicer appointed as herein
provided.
"Master Servicer Remittance Amount": With respect to any Master
Servicer Remittance Date, an amount equal to (a) all amounts on
deposit in the
Certificate Account as of the commencement of business on such
Master Servicer
Remittance Date, net of (b) any portion of the amounts described in
clause (a)
of this definition that represents one or more of the following:
(i) collected
Monthly Payments that are due on a Due Date following the end of
the related
Collection Period, (ii) any payments of principal (including,
without
limitation, Principal Prepayments) and interest (including, without
limitation,
Additional Interest), Liquidation Proceeds and Insurance Proceeds
received after
the end of the related Collection Period, (iii) any Prepayment
Premiums received
after the end of the related Collection Period, (iv) any amounts
payable or
reimbursable to any Person from the Certificate Account pursuant to
any of
clauses (ii) through (xvi) of Section 3.05(a), and (v) any amounts
deposited in
the
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Certificate Account in error; provided that, with respect to the
Master Servicer
Remittance Date that occurs in the same calendar month as the Final
Distribution
Date, the Master Servicer Remittance Amount will be calculated
without regard to
clauses (b)(i), (b)(ii) and (b)(iii) of this definition.
"Master Servicer Remittance Date": The Business Day immediately
preceding each Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and
REO
Loan, the fee payable to the Master Servicer pursuant to Section
3.11(a) and
from which the Standby Fee and any Primary Servicing Fees are
payable.
"Master Servicing Fee Rate": With respect to each Mortgage Loan
(and
any related REO Loan), the rate per annum that is 0.____ basis
points (0.____%
per annum) less than the Administrative Fee Rate specified for such
Mortgage
Loan in the Mortgage Loan Schedule.
"Minor REMIC I Regular Interests": Collectively, REMIC I
Regular
Interest A-1-Minor, REMIC I Regular Interest A-2-Minor, REMIC I
Regular Interest
B-Minor, REMIC I Regular Interest C-Minor, REMIC I Regular Interest
D-Minor,
REMIC I Regular Interest E-Minor, REMIC I Regular Interest F-Minor,
REMIC I
Regular Interest G-Minor, REMIC I Regular Interest H-Minor, REMIC I
Regular
Interest J-Minor and REMIC I Regular Interest K-Minor.
"Modified Mortgage Loan": Any Mortgage Loan as to which any
Servicing Transfer Event has occurred and which has been modified
by the Special
Servicer pursuant to Section 3.20 in a manner that:
(A) affects the amount or timing of any payment of principal or
interest
due thereon (other than, or in addition to, bringing current
Monthly
Payments with respect to such Mortgage Loan);
(B) except as expressly contemplated by the related Mortgage,
results in
a release of the lien of the Mortgage on any material portion
of the
related Mortgaged Property without a corresponding Principal
Prepayment
in an amount not less than the fair market value (as is), as
determined
by an Appraisal delivered to the Special Servicer (at the
expense of
the related Mortgagor and upon which the Special Servicer may
conclusively rely), of the property to be released; or
(C) in the good faith and reasonable judgment of the Special
Servicer,
otherwise materially impairs the security for such Mortgage
Loan
or reduces
the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan, for any
Due
Date as of which such Mortgage Loan is outstanding, the scheduled
monthly
payment (or, in the case of a Hyper-Amortization Loan after its
Anticipated
Repayment Date, the minimum required monthly payment) of principal
and/or
interest on such Mortgage Loan, including, without
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limitation, a Balloon Payment, that is actually payable by the
related Mortgagor
from time to time under the terms of the related Mortgage Note (as
such terms
may be changed or modified in connection with a bankruptcy or
similar proceeding
involving the related Mortgagor or a modification, waiver or
amendment of such
Mortgage Loan granted or agreed to by the Master Servicer or
Special Servicer
pursuant to Section 3.20) and applicable law; provided that the
Monthly Payment
due in respect of any Hyper-Amortization Loan after its Anticipated
Repayment
Date shall not include Additional Interest.
"Mortgage": With respect to any Mortgage Loan, separately and
collectively, as the context may require, each mortgage, deed of
trust and/or
other similar document or instrument securing the related Mortgage
Note and
creating a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, subject to
Section 2.01(c), collectively the following documents:
(i) the original
Mortgage Note, endorsed by the most recent
endorsee prior to the Trustee or, if none, by the originator,
without recourse, either in blank or to the order of the
Trustee in the following form: "Pay to the order of [TRUSTEE],
as trustee for the registered holders of Banc of America
Commercial Mortgage Inc., Mortgage Pass-Through Certificates,
Series 200_-_, without recourse";
(ii) the original or a
copy of the Mortgage and, if applicable, the
originals or copies of any intervening assignments thereof
showing a complete chain of assignment from the originator of
the Mortgage Loan to the most recent assignee of record
thereof prior to the Trustee, if any, in each case with
evidence of recording indicated thereon;
(iii) an original assignment of the Mortgage, in recordable
form,
executed by the most recent assignee of record thereof prior
to the Trustee or, if none, by the originator, in favor of the
Trustee (in such capacity);
(iv) the original or a
copy of any related Assignment of Leases (if
any such item is a document separate from the Mortgage) and,
if applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment
from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any, in
each case with evidence of recording thereon;
(v) an original
assignment of any related Assignment of Leases (if
any such item is a document separate from the Mortgage), in
recordable form, executed by the most recent assignee of
record thereof prior to the Trustee or, if none, by the
originator, in favor of the Trustee (in such capacity), which
assignment may be included as part of the corresponding
assignment of Mortgage referred to in clause (iii) above;
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<PAGE>
(vi) an original or
copy of any related Security Agreement (if such
item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening
assignments thereof showing a complete chain of assignment
from the originator of the Mortgage Loan to the most recent
assignee of record thereof prior to the Trustee, if any;
(vii) an original assignment of any related Security Agreement
(if
such item is a document separate from the Mortgage) executed
by the most recent assignee of record thereof prior to the
Trustee or, if none, by the originator, in favor of the
Trustee (in such capacity), which assignment may be included
as part of the corresponding assignment of Mortgage referred
to in clause (iii) above;
(viii) originals or copies of all assumption, modification,
written
assurance and substitution agreements, with evidence of
recording thereon if 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 or a
copy of the lender's title insurance policy
issued as of the date of the origination of the Mortgage Loan,
together with all endorsements or riders (or copies thereof)
that were issued with or subsequent to the issuance of such
policy, insuring the priority of the Mortgage as a first lien
on the Mortgaged Property;
(x) the original
of any guaranty of the obligations of the
Mortgagor under the Mortgage Loan which was in the possession
of the Mortgage Loan Seller at the time the Mortgage Files
were delivered to the Trustee;
(xi) (A) file or
certified copies of any UCC Financing Statements
and continuation statements which were filed in order to
perfect (and maintain the perfection of) any security interest
held by the originator of the Mortgage Loan (and each assignee
of
record 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 which were in the possession
of the Mortgage Loan Seller at the time the Mortgage Files
were delivered to the Trustee and (B) if any such security
interest is perfected and the related UCC-1, UCC-2 or UCC-3
financing statements were in the possession of the Mortgage
Loan Seller, a UCC-2 or UCC-3 financing statement, as
applicable, executed by the most recent assignee of record
prior to the Trustee or, if none, by the originator,
evidencing the
transfer of such security interest to the
Trustee (or a certified copy of such assignment as sent for
filing);
(xii) the original or a copy of the power of attorney (with
evidence
of recording thereon, if appropriate) granted by the Mortgagor
if the
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Mortgage, Mortgage Note or other document or instrument
referred to above was signed on behalf of the Mortgagor;
(xiii) if the Mortgagor has a leasehold interest in the related
Mortgaged Property, the original Ground Lease or a copy
thereof;
(xiv) the original or copy of any intercreditor agreement
relating
to such Mortgage Loan;
(xv) the original or
copy of any operating lease relating to the
related Mortgaged Property; and
(xvi) any additional documents required to be added to the
Mortgage
File pursuant to this Agreement;
provided 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, the term "Mortgage Loan" includes the related
Mortgage
Note, Mortgage and other security documents contained in the
related Mortgage
File.
"Mortgage Loan Purchase Agreement": The Mortgage Loan Purchase
Agreement, dated as of _________ __, 200_, between ________ and
Banc of America
Commercial Mortgage Inc..
"Mortgage Loan Schedule": The list of Mortgage Loans transferred
on
the Closing Date to the Trustee as part of the Trust Fund, which
list is
attached hereto as Schedule I and may be amended from time to time
in accordance
with Section 2.02(e). The Mortgage Loan Schedule shall set forth,
among other
things, the following information with respect to each Mortgage
Loan:
(i)
the loan number
and control number;
(ii)
the street address
(including city, state and zip code) of the
related Mortgaged Property;
(iii) the
Mortgage Rate in effect as of the Cut-off Date;
(iv)
the original principal
balance;
(v)
the Cut-off Date
Balance;
(vi)
the (A) remaining term
to stated maturity and (B) Stated Maturity
Date or, in the case of a Hyper-Amortization Loan, the
Anticipated
Repayment Date;
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(vii) the
Due Date;
(viii) the
amount of the Monthly Payment due on the first Due Date
following the Cut-off Date;
(ix)
the Administrative Fee
Rate (inclusive of the Primary Servicing Fee
Rate);
(x)
the Primary
Servicing Fee Rate;
(xi)
whether the
Mortgagor's interest in the related Mortgaged Property
is a leasehold estate;
(xii)
whether the Mortgage Loan is a Cross-Collateralized Mortgage
Loan
and, if so, a reference to the other Mortgage Loans that are
cross-collateralized with such Mortgage Loan; and
(xiii)
whether the Mortgage Loan is a Hyper-Amortization Mortgage
Loan.
The Mortgage Loan Schedule shall also set forth the aggregate
Cut-off Date
Balance 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": _________________________________.
"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 Pool": Collectively, all of the Mortgage Loans and
any
successor REO Loans.
"Mortgage Rate": With respect to (i) any Mortgage Loan on or
prior
to its Stated Maturity Date, the 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 terms of the related Mortgage Note (as such
may be
modified at any time following the Closing Date) and applicable
law, (ii) any
Mortgage Loan after its Stated Maturity Date, the annualized rate
described in
clause (i) above determined without regard to the passage of such
Stated
Maturity Date, and (iii) any REO Loan, the annualized rate
described in clause
(i) or (ii) above, as applicable, determined as if the related
Mortgage Loan had
remained outstanding.
"Mortgaged Property": Individually and collectively, as the
context
may require, each real property (together with all improvements and
fixtures
thereon) subject to the lien of a Mortgage and constituting
collateral for a
Mortgage Loan. With respect to any Cross-Collateralized Mortgage
Loan, as the
context may require, "Mortgaged Property" may mean, collectively,
all the
Mortgaged Properties securing such Cross-Collateralized Mortgage
Loan.
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"Mortgagor": The obligor or obligors on a Mortgage Note,
including
without limitation, any Person that has acquired the related
Mortgaged Property
and assumed the obligations of the original obligor under the
Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to
any
Distribution Date, the amount, if any, by which (a) the aggregate
of all
Prepayment Interest Shortfalls incurred in connection with the
receipt of
Principal Prepayments on the Mortgage Loans during the related
Collection
Period, exceeds (b) the aggregate amount remitted by the Master
Servicer for
deposit in the Distribution Account for such Distribution Date
pursuant to
Section 3.19(e) in connection with such Prepayment Interest
Shortfalls.
"Net Default Charges": With respect to any Mortgage Loan or REO
Loan, any Default Charges actually collected thereon (determined in
accordance
with the allocation of amounts collected as specified in Section
1.02), net of
(if, but only if, such Default Charges are allocable to the period
that such
Mortgage Loan was a Specially Serviced Mortgage Loan) any Advance
Interest
accrued on Advances made in respect of such Mortgage Loan that are
reimbursable
from such Default Charges in accordance with Section
3.05(a)(viii).
"Net
Investment Earnings": With respect to any Investment Account
for any Collection Period, the amount, if any, by which the
aggregate of all
interest and other income realized during such Collection Period on
funds held
in such Investment Account, exceeds the aggregate of all losses and
investment
costs, if any, incurred during such Collection Period in connection
with the
investment of such funds in accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account
for
any Collection Period, the amount by which the aggregate of all
losses and
investment costs, if any, incurred during such Collection Period in
connection
with the investment of funds held in such Investment Account in
accordance with
Section 3.06, exceeds the aggregate of all interest and other
income realized
during such Collection 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 related Administrative Fee Rate.
["Net Operating Income": With respect to any Mortgaged Property,
the
total operating revenues derived from such Mortgaged Property,
minus the total
fixed and variable operating expenses incurred in respect of such
Mortgaged
Property (subject to adjustments for, among other things, (i)
non-cash items
such as depreciation and amortization, (ii) capital expenditures
and (iii) debt
service on loans secured by the Mortgaged Property).]
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance made or
proposed to be
made in respect of a Mortgage Loan or REO Loan which, as determined
by the
Master Servicer or, if applicable, the Trustee, in its reasonable
and good faith
judgment, will not be recoverable (together with Advance Interest
accrued
thereon), or which in fact was not
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ultimately recovered, from late collections, Insurance Proceeds,
Liquidation
Proceeds or any other recovery on or in respect of such Mortgage
Loan or REO
Property (without giving effect to potential recoveries on
deficiency judgments
or recoveries from guarantors).
"Nonrecoverable Servicing Advance": Any Servicing Advance made
or
proposed to be made in respect of a Mortgage Loan or REO Property
which, as
determined by the Master Servicer, the Special Servicer or, if
applicable, the
Trustee, in its reasonable and good faith judgment, will not be
recoverable
(together with Advance Interest accrued thereon), or which in fact
was not
ultimately recovered, from late collections, Insurance Proceeds,
Liquidation
Proceeds or any other recovery on or in respect of such Mortgage
Loan or REO
Property (without giving effect to potential recoveries on
deficiency judgments
or recoveries from guarantors).
"Non-Registered Certificate": Unless and until registered under
the
Securities Act, any Class F, Class G, Class H, Class J, Class K or
Residual
Certificate.
"Non-United States Person": Any person other than a United
States
Person.
"Officer's Certificate": A certificate signed by a Servicing
Officer
of the Master Servicer or the Special Servicer or a Responsible
Officer of the
Trustee, as the case may be.
"Operating Statement Analysis": As defined in Section 4.02(b).
"Opinion of Counsel": A written opinion of counsel (who must,
in
connection with any opinion rendered pursuant hereto with respect
to tax matters
or a resignation under Section 6.04, be Independent counsel, but
who otherwise
may be salaried counsel for the Depositor, the Mortgage Loan
Seller, the
Trustee, the REMIC Administrator, the Master Servicer or the
Special Servicer),
which written opinion is acceptable and delivered to the
addressee(s).
"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": With respect to any Class of Sequential
Pay
Certificates, for any Distribution Date, the fixed rate per annum
specified as
such in respect of such Class of Certificates in the Preliminary
Statement
hereto. With respect to the Class X Certificates, for any
Distribution Date, the
excess, if any, of (a) the REMIC I Remittance Rate applicable to
each Major
REMIC I Regular Interest (i.e., the Weighted Average Adjusted Net
Mortgage Rate)
for such Distribution Date, over (b) the weighted average of the
fixed REMIC I
Remittance Rates applicable to all the Minor REMIC I Regular
Interests, weighted
on the basis of the respective Uncertificated Principal Balances of
such Minor
REMIC I Regular Interests outstanding immediately prior to such
Distribution
Date.
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"Payment Priority": With respect to any Class of Certificates,
the
priority of the Holders thereof in respect of the Holders of the
other Classes
of Certificates to receive distributions out of the Available
Distribution
Amount for any Distribution Date. The Payment Priority of the
respective Classes
of Certificates shall be, in descending order, as follows: first,
the respective
Classes of Senior Certificates, pro rata; second, the Class B
Certificates;
third, the Class C Certificates; fourth, the Class D Certificates;
fifth, the
Class E Certificates; sixth, the Class F Certificates; seventh, the
Class G
Certificates; eighth, the Class H Certificates; ninth, the Class J
Certificates;
tenth, the Class K Certificates; and last, the respective Classes
of Residual
Certificates.
"Percentage Interest": With respect to any REMIC II Regular
Certificate, the portion of the relevant Class evidenced by such
Certificate,
expressed as a percentage, the numerator of which is the
Certificate Principal
Balance or Certificate Notional Amount, as the case may be, of such
Certificate
as of the Closing Date, as specified on the face thereof, and the
denominator of
which is the Initial Class Principal Balance or Initial Class
Notional Amount,
as the case may be, of the relevant Class. With respect to a
Residual
Certificate, the percentage interest in distributions to be made
with respect to
the relevant Class, as stated on the face of such Certificate.
"Permitted Investments": Any one or more of the following
obligations:
(i) direct obligations of, or obligations fully guaranteed as
to
timely
payment of principal and interest by, the United States or any
agency or
instrumentality thereof, provided such obligations are backed
by
the full
faith and credit of the United States;
(ii) repurchase obligations with respect to any security
described
in clause
(i) above, provided that the long-term unsecured debt
obligations of the party agreeing to repurchase such obligations
are rated
"___" by
______ and "____" by ____);
(iii) certificates of deposit, time deposits, demand deposits
and
bankers'
acceptances of any bank or trust company organized under the
laws
of the
United States or any state, provided that (a) the long-term
unsecured
debt obligations of such bank or trust company are rated
"_____"
by
__________ and "______" by _____ or (b) the short-term unsecured
debt
obligations of such bank or trust company are rated no less than
"_____"
by
_________ and "_______" by ________ or (c) if both such long-term
and
short-term
unsecured debt obligations have been rated by [either] Rating
Agency,
then each must be rated as specified in the immediately
preceding
clauses
(a) and (b) with respect to such Rating Agency;
(iv) commercial paper (having original maturities of not more
than
365 days)
of any corporation incorporated under the laws of the United
States or
any state thereof rated no less than "_____" by ________ and
"______"
by ______; and
(v) any other obligation or security which would not result in
the
downgrade,
qualification or withdrawal of the rating then assigned by
either
Rating
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Agency to
any Class of Certificates, evidence of which shall be confirmed
in writing
by each Rating Agency to the Trustee;
provided that no investment described hereunder shall evidence
either the right
to receive (a) only interest with respect to such investment or (b)
a yield to
maturity greater than 120% of the yield to maturity at par of the
underlying
obligations; and provided, further, that no investment described
hereunder may
be purchased at a price greater than par if such investment may be
prepaid or
called at a price less than its purchase price prior to stated
maturity; and
provided, further, that no investment described hereunder may be
sold prior to
stated maturity if such sale would result in a loss of principal on
the
instrument or a tax on "prohibited transactions" under Section 860F
of the Code;
and provided, further, that each investment described hereunder
shall, by its
terms, have a predetermined fixed amount of principal due at
maturity (that
cannot vary or change) and either a fixed interest rate or variable
interest
rate tied to a single interest rate index plus a single fixed
spread; and
provided, further, that each investment described hereunder shall
be a "cash
flow investment", as defined in the REMIC Provisions.
"Permitted Transferee ": Any Transferee of a Residual
Certificate
other than either a Disqualified Organization or a Non-United
States Person.
"Person": Any individual, corporation, partnership, joint
venture,
association, joint-stock company, trust, unincorporated
organization, limited
liability company or government or any agency or political
subdivision thereof.
"Phase I Environmental Assessment": [A "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the Fannie
Mae Multifamily
Guide, Part II, as amended from time to time.]
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance
made
by the Master Servicer or the Trustee pursuant to Section 4.03.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": The assumption that no Mortgage Loan
(other
than a Hyper-Amortization Loan) is prepaid prior to its Stated
Maturity Date and
that no Hyper-Amortization Loan is prepaid prior to, but each is
paid in its
entirety on, its Anticipated Repayment Date, such assumption to be
used for
determining the accrual of original issue discount, market discount
and premium,
if any, on the Mortgage Loans, the REMIC I Regular Interests and
the
Certificates for federal income tax purposes.
"Prepayment Interest Excess": With respect to any Mortgage Loan
that
was subject to a Principal Prepayment in full or in part made on or
prior to the
Determination Date in any calendar month but after the first day of
such month,
any payment of interest (net of related Servicing Fees and
exclusive of
Prepayment Premiums and, in the case of a Hyper-Amortization Loan
after its
Anticipated Repayment Date, Additional Interest) actually collected
from the
related Mortgagor and intended to cover the period from the
commencement of such
month to the date of prepayment.
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"Prepayment Interest Shortfall": With respect to any Mortgage
Loan
that was subject to a Principal Prepayment in full or in part made
after the
Determination Date in any calendar month, the amount of uncollected
interest
(determined without regard to any Prepayment Premium that may have
been
collected and exclusive of, in the case of a Hyper-Amortization
Loan after its
Anticipated Repayment Date, Additional Interest) that would have
accrued at a
per annum rate equal to the sum of the Net Mortgage Rate for such
Mortgage Loan
plus the Trustee Fee Rate, on the amount of such Principal
Prepayment during the
period commencing on the date as of which such Principal Prepayment
was applied
to such Mortgage Loan and ending on the last day of such calendar
month,
inclusive.
"Prepayment Premium": Any premium, penalty or fee paid or
payable,
as the context requires, by a Mortgagor in connection with a
Principal
Prepayment on, or other early collection of principal of, a
Mortgage Loan or any
successor REO Loan.
"Primary Servicing Fee": With respect to each Mortgage Loan that
is
subject to a Sub-Servicing Agreement as of the Closing Date, the
monthly fee
payable to the Sub-Servicer by the Master Servicer from the Master
Servicing
Fee.
"Primary Servicing Fee Rate": With respect to each Mortgage
Loan
that is subject to a Sub-Servicing Agreement as of the Closing
Date, the rate
per annum specified as such in the Mortgage Loan Schedule.
"Primary Servicing Office": With respect to the Master Servicer,
the
office thereof primarily responsible for performing its respective
duties under
this Agreement, initially located in __________ and, with respect
to the Special
Servicer, the office thereof primarily responsible for performing
its respective
duties under this Agreement, initially located in __________.
"Principal Distribution Amount": With respect to any
Distribution
Date, the aggregate of the Current Principal Distribution Amount
for such
Distribution Date and, if such Distribution Date is subsequent to
the initial
Distribution Date, the excess, if any, of the Principal
Distribution Amount for
the preceding Distribution Date, over the aggregate distributions
of principal
made on the Sequential Pay Certificates on the preceding
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 (without
regard to
any Prepayment Premium that may have been collected) representing
scheduled
interest due on any date or dates in any month or months subsequent
to the month
of prepayment.
"Prospectus Supplement": That certain prospectus supplement
dated
__________ __, 200__, relating to the Registered Certificates, that
is a
supplement to the Base Prospectus.
"Purchase Price": With respect to any Mortgage Loan, a price
equal
to the unpaid principal balance of the Mortgage Loan as of the date
of purchase,
together with (a) all
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accrued and unpaid interest (excluding, in the case of a
Hyper-Amortization Loan
after its Anticipated Repayment Date, Additional Interest) on the
Mortgage Loan
at the related Mortgage Rate to but not including the Due Date in
the Collection
Period of purchase, (b) all related unreimbursed Servicing
Advances, and (c) if
paid in connection with any repurchase of such Mortgage Loan by the
Mortgage
Loan Seller or any Affiliate thereof pursuant to Section 2.03, all
accrued and
unpaid Advance Interest in respect of related Advances. With
respect to any REO
Property, a price equal to the unpaid principal balance of the
related REO Loan
as of the date of purchase, together with (a) all accrued and
unpaid interest
(excluding, in the case of a Hyper-Amortization Loan after its
Anticipated
Repayment Date, Additional Interest) on such REO Loan at the
related Mortgage
Rate to but not including the Due Date in the Collection Period of
purchase, (b)
all related unreimbursed Servicing Advances, and (c) if paid in
connection with
any repurchase of such REO Property by the Mortgage Loan Seller or
any Affiliate
thereof pursuant to Section 2.03, all accrued and unpaid Advance
Interest in
respect of related Advances. The Purchase Price of any Mortgage
Loan or REO
Property is intended to include, without limitation, principal and
interest
previously advanced with respect thereto and not previously
reimbursed.
"PV Yield Loss Amount": As defined in Section 4.01(a).
"Qualified Appraiser": In connection with the appraisal of any
Mortgaged Property or REO Property, an Independent MAI-designated
appraiser with
at least five years of experience in respect of the relevant
geographic location
and property type.
"Qualified Insurer": An insurance company or security or
bonding
company qualified to write the related Insurance Policy in the
relevant
jurisdiction.
"Rating Agency": Each of _____ and _________.
"Realized Loss": With respect to each defaulted Mortgage Loan as
to
which a Final Recovery Determination has been made, or with respect
to any REO
Loan as to which a Final Recovery Determination has been made as to
the related
REO Property, an amount (not less than zero) equal to (i) the
unpaid principal
balance of such Mortgage Loan or REO Loan, as the case may be, as
of the
commencement of the Collection Period in which the Final Recovery
Determination
was made, plus (ii) all accrued but unpaid interest (excluding, in
the case a
Hyper-Amortization Loan after its Anticipated Repayment Date,
Additional
Interest) on such Mortgage Loan or REO Loan, as the case may be
(without taking
into account the amounts described in subclause (iv) of this
sentence), at the
related Mortgage Rate to but not including the Due Date in the
Collection Period
in which the Final Recovery Determination was made, plus (iii) any
related
unreimbursed Servicing Advances as of the commencement of the
Collection Period
in which the Final Recovery Determination was made, together with
any new
related Servicing Advances made during such Collection Period,
minus (iv) all
payments and proceeds, if any, received in respect of such Mortgage
Loan or REO
Loan, as the case may be, during the Collection Period in which
such Final
Recovery Determination was made (net of any related Liquidation
Expenses paid
therefrom).
With respect to any Mortgage Loan as to which any portion of
the
outstanding principal or accrued interest owed thereunder was
forgiven in
connection with a bankruptcy or
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similar proceeding involving the related Mortgagor or a
modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master
Servicer or
Special Servicer pursuant to Section 3.20, the amount of such
principal or
interest (other than any Default Interest) so forgiven.
With respect to any Mortgage Loan as to which the Mortgage Rate
thereon has been permanently reduced and not recaptured for any
period in
connection with a bankruptcy or similar proceeding involving the
related
Mortgagor or a modification, waiver or amendment of such Mortgage
Loan granted
or agreed to by the Master Servicer or Special Servicer pursuant to
Section
3.20, the amount of the consequent reduction, if any, in the
interest portion of
each successive Monthly Payment due thereon. Each such Realized
Loss shall be
deemed to have been incurred on the Due Date for each affected
Monthly Payment.
"Record Date": With respect to each Class of Certificates, for
any
Distribution Date, the last Business Day of the calendar month
immediately
preceding the month in which such Distribution Date occurs.
"Registered Certificates": The Class X, Class A-1, Class A-2,
Class
B,(Class C, Class D and Class E Certificates.
"Reimbursement Rate": The rate per annum applicable to the
accrual
of Advance Interest, which rate per annum shall be equal to the
"prime rate" as
published in the "Money Rates" section of The Wall Street Journal,
as such
"prime rate" may change from time to time. If The Wall Street
Journal ceases to
publish such "prime rate", then the Trustee, in its sole
discretion, shall
select an equivalent publication that publishes such "prime rate";
and if such
"prime rate" is no longer generally published or is limited,
regulated or
administered by a governmental or quasi-governmental body, then the
Trustee
shall select a comparable interest rate index. In either case, such
selection
shall be made by the Trustee in its sole discretion and the Trustee
shall notify
the Master Servicer and the Special Servicer in writing of its
selection.
"Reinvestment Yield": As defined in Section 4.01(a).
"REMIC": A "real estate mortgage investment conduit" as defined
in
Section 860D of the Code.
"REMIC Administrator":
________________________ its successor in
interest, or any successor REMIC administrator appointed as herein
provided.
"REMIC I": The segregated pool of assets subject hereto,
constituting the primary trust created hereby and to be
administered hereunder,
with respect to which a REMIC election is to be made, 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 or
receivable after
the Cut-off Date (other than payments of principal, interest and
other amounts
due and payable on the Mortgage Loans on or before the Cut-off
Date), together
with all documents, Escrow Payments and Reserve Funds delivered or
caused to be
delivered hereunder with respect to such Mortgage Loans by the
Mortgage Loan
Seller; (ii)
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<PAGE>
any REO Property acquired in respect of a Mortgage Loan and all
payments and
proceeds of such REO Property; and (iii) such funds or assets as
from time to
time are deposited in the Distribution Account, the Certificate
Account and the
REO Account (if established).
"REMIC I Regular Interest": Any of the 22 separate
non-certificated
beneficial ownership interests in REMIC I issued hereunder and
designated as a
"regular interest" in REMIC I. Each REMIC I Regular Interest shall
accrue
interest at the related REMIC I Remittance Rate in effect from time
to time and
shall be entitled to distributions of principal, subject to the
terms and
conditions hereof, in an aggregate amount equal to its initial
Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto.
The
designations for the respective REMIC I Regular Interests are set
forth in the
Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any Major REMIC I
Regular
Interest, for any Distribution Date, the Weighted Average Adjusted
Net Mortgage
Rate for such Distribution Date. With respect to any Minor REMIC I
Regular
Interest, for any Distribution Date, the fixed rate per annum
specified as such
in respect of such Minor REMIC I Regular Interest in the
Preliminary Statement
hereto.
"REMIC II": The segregated pool of assets consisting of all of
the
REMIC I Regular Interests, with respect to which a separate REMIC
election is to
be made.
"REMIC II Certificate": Any Certificate, other than a Class R-I
Certificate.
"REMIC II Regular Certificate": Any REMIC II Certificate, other
than
a Class R-II Certificate.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear
at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and
related
provisions, and proposed, temporary and final Treasury regulations
and any
published rulings, notices and announcements promulgated
thereunder, as the
foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property,
gross
income of the character described in Section 856(d) of the
Code.
"REO Account": A segregated 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 "[Special
Servicer], as Special Servicer, in trust for registered holders of
Banc of
America Commercial Mortgage Inc., Mortgage Pass-Through
Certificates, Series
200__-__".
"REO Acquisition": The acquisition 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).
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"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 acquired in respect
of any
Mortgage Loan. Each REO Loan shall be deemed to provide for monthly
payments of
principal and/or interest equal to its Assumed Monthly Payment and
otherwise to
have the same terms and conditions as the predecessor Mortgage
Loan. Each REO
Loan shall be deemed to have an initial unpaid principal balance
and Stated
Principal Balance equal to the unpaid principal balance and Stated
Principal
Balance, respectively, of the predecessor Mortgage Loan as of the
date of the
related REO Acquisition. In addition, all Monthly Payments (other
than any
Balloon Payment), Assumed Monthly Payments (in the case of a
Balloon Mortgage
Loan delinquent in respect of its Balloon Payment) and other
amounts due and
owing, or deemed to be due and owing, in respect of the predecessor
Mortgage
Loan as of the date of the related REO Acquisition, shall be deemed
to continue
to be due and owing in respect of an REO Loan. All amounts payable
or
reimbursable to the Master Servicer, the Special Servicer and/or
the Trustee in
respect of the related Mortgage Loan as of the date of the related
REO
Acquisition, including, without limitation, any unpaid Servicing
Fees and any
unreimbursed Advances, together with any Advance Interest accrued
and payable to
the Master Servicer, Special Servicer and/or the Trustee in respect
of such
Advances, shall continue to be payable or reimbursable to the
Master Servicer,
Special Servicer and/or Trustee as the case may be, in respect of
an REO Loan.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of the Trustee for the benefit of the
Certificateholders
pursuant to Section 3.09 through foreclosure, acceptance of a
deed-in-lieu of
foreclosure or otherwise in accordance with applicable law in
connection with
the default or imminent default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived
from
the ownership, operation or leasing of any REO Property.
"REO Status Report": A report or reports substantially in the
form
of Exhibit E attached hereto setting forth, among other things,
with respect to
each REO Property that was included in the Trust Fund as of the
close of
business on the Determination Date immediately preceding the
preparation of such
report or reports, (i) the Acquisition Date of such REO Property,
(ii) the
amount of income collected with respect to any REO Property (net of
related
expenses) and other amounts, if any, received on such REO Property
during the
Collection Period ending on such Determination Date and (iii) the
value of the
REO Property based on the most recent Appraisal or other valuation
thereof
available to the Master Servicer as of such Determination Date
(including any
valuation prepared internally by the Special Servicer).
"REO Tax": As defined in Section 3.17(a).
"Request for Release": A request for release signed by a
Servicing
Officer of, as applicable, the Master Servicer or Special Servicer
in the form
of Exhibit D attached hereto.
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"Required Appraisal Loan": As defined in Section 3.19(b).
"Required Claims-Paying Ratings": With respect to any insurance
carrier, claims-paying ability ratings at least equal to the
following minimum
ratings assigned to such carrier by at least two of the following
parties and,
in any event, by each Rating Agency that assigned a rating to the
claims-paying
ability of such insurance carrier: _________ ("____" or
better),
_______________________ ("__" or better), ____ ("___" or
better),
_____________________________,
_____________________________________ ("__" or
better) and ______________ ("____" or better); unless each of the
Rating
Agencies has confirmed in writing that an insurance company with
lower or fewer
claims-paying ability ratings shall not result, in and of itself,
in a
downgrading, withdrawal or qualification of the then current rating
assigned by
such Rating Agency to any Class of Certificates.
"Reserve Account": The account or accounts created and
maintained
pursuant to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on
behalf of the
mortgagee representing reserves for principal and interest
payments, repairs,
replacements, capital improvements (including, without limitation,
tenant
improvements and leasing commissions), and/or environmental testing
and
remediation with respect to the related Mortgaged Property.
"Residual
Certificate": Any Class R-I or Class R-II Certificate.
"Responsible Officer": When used with respect to the Trustee,
any
officer assigned to the Asset-Backed Securities Trust Services
Group, any vice
president, any assistant vice president, any assistant secretary,
any assistant
treasurer, or any other officer of the Trustee customarily
performing functions
similar to those performed by any of the above designated officers
to whom a
particular matter is referred by the Trustee because of such
officer's knowledge
of and familiarity with the particular subject. When used with
respect to any
Certificate Registrar (other than the Trustee), any officer or
assistant officer
thereof.
"Securities Act": The Securities Act of 1933, as amended.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement, chattel mortgage or similar document or
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.
"Senior Certificate": Any Class A-1, Class A-2 or Class X
Certificate.
"Senior Principal Distribution Cross-Over Date": The first
Distribution Date as of which the aggregate Class Principal Balance
of the Class
A-1 and Class A-2 Certificates outstanding immediately prior to
such
Distribution Date exceeds the sum of (a) the aggregate Stated
Principal Balance
of the Mortgage Pool that will be outstanding immediately following
such
Distribution Date, plus (b) the lesser of (i) the Principal
Distribution Amount
for such
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Distribution Date and (ii) the portion of the Available
Distribution Amount for
such Distribution Date that will remain after the distributions of
interest to
be made on the Senior Certificates on such Distribution Date have
been so made.
"Sequential Pay Certificate": Any Class A, Class B, Class C,
Class
D, Class E, Class F, Class G, Class H, Class J or Class K
Certificate.
"Servicing Account": The account or accounts created and
maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary
"out
of pocket" costs and expenses incurred or to be incurred, as the
context
requires, by the Master Servicer or the Special Servicer (or, if
applicable, the
Trustee) in connection with the servicing of a Mortgage Loan after
a default,
delinquency or other unanticipated event, or in connection with
the
administration of any REO Property, including, but not limited to,
the cost of
(a) compliance with the obligations of the Master Servicer and/or
the Special
Servicer set forth in Sections 3.03(c) and 3.09, (b) the
preservation,
insurance, restoration, protection and management of a Mortgaged
Property, (c)
obtaining any Liquidation Proceeds or Insurance Proceeds in respect
of any
Mortgage Loan or REO Property, (d) any enforcement or judicial
proceedings with
respect to a Mortgaged Property, including, without limitation,
foreclosures,
and (e) the operation, management, maintenance and liquidation of
any REO
Property; provided that notwithstanding anything to the contrary,
"Servicing
Advances" shall not include allocable overhead of the Master
Servicer or the
Special Servicer, such as costs for office space, office equipment,
supplies and
related expenses, employee salaries and related expenses and
similar internal
costs and expenses, or costs incurred by either such party in
connection with
its purchase of any Mortgage Loan or REO Property pursuant to any
provision of
this Agreement. All Emergency Advances made by the Special Servicer
hereunder
shall be considered "Servicing Advances" for the purposes
hereof.
"Servicing Fees": With respect to each Mortgage Loan and REO
Loan,
the Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to
be
part of the related Mortgage File), including, without limitation,
the related
environmental site assessment report(s) referred to in Section
2.05(c)(xiv), in
the possession of the Master Servicer or the Special Servicer and
relating to
the origination and servicing of any Mortgage Loan.
"Servicing Officer": Any officer or authorized signatory of the
Master Servicer or the Special Servicer involved in, or responsible
for, the
administration and servicing of Mortgage Loans, whose name and
specimen
signature appear on a list of such officers and authorized
signatories furnished
by such party to the Trustee and the Depositor on the Closing Date,
as such list
may be amended from time to time thereafter.
"Servicing Return Date": With respect to any Corrected Mortgage
Loan, the date that servicing thereof is returned by the Special
Servicer to the
Master Servicer pursuant to Section 3.21(a).
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"Servicing Standard": With respect to each of the Master
Servicer
and the Special Servicer, to service and administer the Mortgage
Loans and any
REO Properties for which such Person is responsible hereunder: (a)
in accordance
with the higher standard of (i) the same manner in which, and with
the same
care, skill, prudence and diligence with which, the Master Servicer
or Special
Servicer, as the case may be, generally services and administers
comparable
mortgage loans or assets, as applicable, for other third parties,
and (ii) the
same manner in which, and with the same care, skill, prudence and
diligence with
which, the Master Servicer or the Special Servicer, as the case may
be,
generally services and administers comparable mortgage loans or
assets, as
applicable, owned by it; (b) with a view to the timely collection
of all Monthly
Payments of principal and interest under the Mortgage Loans or, if
a Mortgage
Loan comes into and continues in default and if, in the good faith
and
reasonable judgment of the Special Servicer, no satisfactory
arrangements can be
made for the collection of the delinquent payments, the
maximization of the
recovery on such Mortgage Loan to the Certificateholders (as a
collective whole)
on a present value basis (the relevant discounting of anticipated
collections
that will be distributable to Certificateholders to be performed at
the related
Net Mortgage Rate (or, in the case of a Hyper-Amortization Loan
after its
Anticipated Repayment Date, the related Net Mortgage Rate in effect
immediately
prior to such Anticipated Repayment Date)); and (c) without regard
to: (i) any
relationship that the Master Servicer or the Special Servicer, as
the case may
be, or any Affiliate thereof may have with any related Mortgagor;
(ii) the
ownership of any Certificate by the Master Servicer or the Special
Servicer, as
the case may be, or by any Affiliate thereof; (iii) the Master
Servicer's
obligation to make Advances; (iv) the Special Servicer's obligation
to make (or
to direct the Master Servicer to make) Servicing Advances; and (v)
the right of
the Master Servicer (or any Affiliate thereof) or the Special
Servicer (or any
Affiliate thereof), as the case may be, to receive compensation for
its services
or reimbursement of costs hereunder or with respect to any
particular
transaction.
"Servicing Transfer Event": With respect to any Mortgage Loan,
the
occurrence of any of the events described in clauses (a) through
(h) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02(a), a
hypothetical Certificate of any Class of REMIC II Regular
Certificates
evidencing a $1,000 denomination or, in the case of a Class X
Certificate, a
100% Percentage Interest in the related Class.
"Special Servicer": ________________________________, its
successor
in interest, or any successor special servicer appointed as herein
provided.
"Special Servicer Loan Status Report": A report or reports
setting
forth, among other things, as of the close of business on the
Determination Date
immediately preceding the preparation of such report or reports,
(i) the
aggregate unpaid principal balance of all Specially Serviced
Mortgage Loans and
(ii) a loan-by-loan listing of all Specially Serviced Mortgage
Loans indicating
their status, date and reason for transfer to the Special
Servicer,
substantially in the form, and including such additional
information, as is
contemplated on page [ ] of the Prospectus Supplement.
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"Special Servicing Fee": With respect to each Specially
Serviced
Mortgage Loan and each REO Loan, the fee designated as such and
payable to the
Special Servicer pursuant to the first paragraph of Section
3.11(c).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0._____% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to
which
any of the following events has occurred:
(a) the related
Mortgagor has failed to make when due any Balloon
Payment, which failure has continued, or the Master Servicer
determines, in its good faith and reasonable judgment, will
continue, unremedied for 30 days; or
(b) the related
Mortgagor has failed to make when due any Monthly
Payment (other than a Balloon Payment) or any other payment
required under the related Mortgage Note or the related
Mortgage, which failure has continued, or the Master Servicer
determines, in its good faith and reasonable judgment, will
continue, unremedied for 60 days; or
(c) the Master
Servicer has determined, in its good faith and
reasonable
judgment, that a default in the making of a Monthly
Payment (including, without limitation, a Balloon Payment) or
any other payment required under the related Mortgage Note or
the related Mortgage is likely to occur within 30 days and is
likely to remain unremedied for at least 60 days or, in the
case of a Balloon Payment, for at least 30 days; or
(d) there shall
have occurred a default under the related loan
documents, other than as described in clause (a) or (b) above,
that may, in the Master Servicer's good faith and reasonable
judgment, materially impair the value of the related Mortgaged
Property as security for the Mortgage Loan or otherwise
materially and adversely affect the interests of
Certificateholders, which default has continued unremedied for
the applicable cure period under the terms of the Mortgage
Loan (or, if no cure period is specified, 60 days); or
(e) a decree or
order of a court or agency or supervisory
authority having jurisdiction in the premises in an
involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law or the appointment of a
conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against the related
Mortgagor and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or
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(f) the related
Mortgagor shall have consented to the appointment
of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or
substantially all of its property; or
(g) the related
Mortgagor shall have admitted in writing its
inability to pay its debts generally as they become due, filed
a petition to take advantage of any applicable insolvency or
reorganization statute, made an assignment for the benefit of
its creditors, or voluntarily suspended payment of its
obligations; or
(h) the Master
Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with
respect to the related Mortgaged Property;
provided that a Mortgage Loan will cease to be a Specially Serviced
Mortgage
Loan, when a Liquidation Event has occurred in respect of such
Mortgage Loan,
when the related Mortgaged Property has become an REO Property, or
at such time
as such of the following as are applicable occur with respect to
the
circumstances identified above that caused the Mortgage Loan to be
characterized
as a Specially Serviced Mortgage Loan (and provided that no other
Servicing
Transfer Event then exists):
(w) with respect
to the circumstances described in clauses (a) and
(b) above, the related Mortgagor has made three consecutive
full and timely Monthly Payments under the terms of such
Mortgage Loan (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving
the related Mortgagor or by reason of a modification, waiver
or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20);
(x) with respect
to the circumstances described in clauses (c),
(e), (f) and (g) above, such circumstances cease to exist in
the good faith and reasonable judgment of the Special
Servicer;
(y) with respect
to the circumstances described in clause (d)
above, such default is cured; and
(z) with respect
to the circumstances described in clause (h)
above, such proceedings are terminated.
"Standby Fee":
With respect to each Mortgage Loan and each REO Loan,
the fee designated as such and payable to the Special Servicer
pursuant to the
second paragraph of Section 3.11(c).
"Standby Fee Rate": With respect to each Mortgage Loan and each
REO
Loan, 0.02% per annum.
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"Startup Day": With respect to each of REMIC I and REMIC II, the
day
designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage Loan, the
Due
Date on which the last payment of principal is due and payable
under the terms
of the related Mortgage Note as in effect on the Closing Date,
without regard to
any change in or modification of such terms in connection with a
bankruptcy or
similar proceeding involving the related Mortgagor or a
modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Master
Servicer or
Special Servicer pursuant to Section 3.20 and, in the case of a
Hyper-Amortization Loan, without regard to its Anticipated
Repayment Date.
"Stated Principal Balance": With respect to any Mortgage Loan
(and
any successor REO Loan), a principal amount initially equal to the
Cut-off Date
Balance of such Mortgage Loan, that is permanently reduced on each
Distribution
Date (to not less than zero) by (i) all payments (or P&I
Advances in lieu
thereof) of, and all other collections allocated as provided in
Section 1.02 to,
principal of or with respect to such Mortgage Loan (or successor
REO Loan) that
are (or, if they had not been applied to cover any Additional Trust
Fund
Expense, would have been) distributed to Certificateholders on such
Distribution
Date, and (ii) the principal portion of any Realized Loss incurred
in respect of
such Mortgage Loan (or successor REO Loan) during the related
Collection Period.
Notwithstanding the foregoing, if a Liquidation Event occurs in
respect of any
Mortgage Loan or REO Property, then the "Stated Principal Balance"
of such
Mortgage Loan or of the related REO Loan, as the case may be, shall
be zero
commencing as of the Distribution Date in the Collection Period
next following
the Collection Period in which such Liquidation Event occurred.
"Subordinated Certificate": Any Class B, Class C, Class D, Class
E,
Class F, Class G, Class H, Class J, Class K or Residual
Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or
the
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicer Termination Compensation": As defined in Section
3.22(d).
"Sub-Servicer Termination Fee": As defined in Section 3.22(d).
"Sub-Servicing Agreement": The written contract between the
Master
Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the
other hand, relating to servicing and administration of Mortgage
Loans as
provided in Section 3.22.
"Tax Matters Person": With respect to each of REMIC I and REMIC
II,
the Person designated as the "tax matters person" of such REMIC in
the manner
provided under Treasury regulation section 1.860F-4(d) and
temporary Treasury
regulation section 301.6231(a)(7)-1T. The "Tax Matters Person" for
each of REMIC
I and REMIC II is the Holder of Certificates evidencing the largest
Percentage
Interest in the related Class of Residual Certificates.
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"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 REMIC I and REMIC II 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 or
Applicable State Law.
"Termination Strip": As defined in Section 3.22(d).
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership
Interest in a
Certificate.
"Transferee": Any Person who is acquiring by Transfer any
Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any
Ownership
Interest in a Certificate.
"Trust": The common law trust created hereby.
"Trust Fund": Collectively, all of the assets of REMIC I and
REMIC
II.
"Trustee": _________________, in its capacity as Trustee
hereunder,
its successor in interest, or any successor trustee appointed as
herein
provided.
"Trustee Fee": The fee payable to the Trustee on each
Distribution
Date for its services as Trustee hereunder, in an aggregate amount
equal to one
month's interest at the Trustee Fee Rate in respect of each
Mortgage Loan and
REO Loan, calculated on the same basis as is applicable to the
accrual of
interest on such Mortgage (i.e., on the basis of, as applicable, a
360-day year
consisting of twelve 30-day months or the actual number of days
elapsed during
each calendar month in a 360-day year) and accrued on the Stated
Principal
Balance of such Mortgage Loan or REO Loan, as the case may be,
immediately prior
to such Distribution Date for the most recently ended calendar
month.
"Trustee Fee Rate": A rate of 0.005% per annum.
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and
filed
pursuant to the Uniform Commercial Code, as in effect in the
relevant
jurisdiction.
"UCC-1", "UCC-2" and "UCC-3": UCC financing statements on Form
UCC-1, Form UCC-2 and Form UCC-3, respectively.
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"Uncertificated Accrued Interest": With respect to any REMIC I
Regular Interest, for any Distribution Date, one month's interest
(calculated on
the basis of a 360-day year consisting of twelve 30-day months) at
the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for
such
Distribution Date, accrued on the Uncertificated Principal Balance
of such REMIC
I Regular Interest outstanding immediately prior to such
Distribution Date. The
Uncertificated Accrued Interest in respect of any REMIC I Regular
Interest for
any Distribution Date shall be deemed to have accrued during the
applicable
Interest Accrual Period.
"Uncertificated Distributable Interest": With respect to any REMIC
I
Regular Interest, for any Distribution Date, the Uncertificated
Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution
Date, reduced
(to not less than zero) by the product of (i) the Net Aggregate
Prepayment
Interest Shortfall, if any, for such Distribution Date, multiplied
by (ii) a
fraction, the numerator of which is the Uncertificated Accrued
Interest in
respect of such REMIC I Regular Interest for such Distribution
Date, and the
denominator of which is the aggregate Uncertificated Accrued
Interest in respect
of all the REMIC I Regular Interests for such Distribution
Date.
"Uncertificated Principal Balance": The principal amount of any
REMIC I Regular Interest outstanding as of any date of
determination. As of the
Closing Date, the Uncertificated Principal Balance of each REMIC I
Regular
Interest shall equal the amount specified as its initial
Uncertificated
Principal Balance in the Preliminary Statement hereto. On each
Distribution
Date, the Uncertificated Principal Balance of each REMIC I Regular
Interest
shall be permanently reduced by all distributions of principal
deemed to have
been made thereon on such Distribution Date pursuant to Section
4.05(a) and, if
and to the extent appropriate, shall be further permanently reduced
on such
Distribution Date as provided in Section 4.05(d).
"United
States 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
whose income from sources without the United States is includible
in gross
income for United States federal income tax purposes regardless of
its
connection with the conduct of a trade or business within the
United States, or
a trust if a court within the United States is able to exercise
primary
supervision over the administration of the trust and one or more
United States
persons have the authority to control all substantial decisions of
the trust,
all within the meaning of Section 7701(a)(30) of the Code.
"USPAP": The Uniform Standards of Professional Appraisal
Practices.
"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, 94.0% of the Voting Rights shall be allocated
among the
Holders of the various outstanding Classes of Sequential Pay
Certificates in
proportion to the respective Class Principal Balances of their
Certificates, and
6.0% of the Voting Rights shall be allocated to the Holders of the
Class X
Certificates. Voting Rights allocated to a Class of
Certificateholders shall be
allocated among
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such Certificateholders in proportion to the Percentage Interests
evidenced by
their respective Certificates.
"Weighted Average Adjusted Net Mortgage Rate": With respect to
any
Distribution Date, the weighted average of the respective Adjusted
Net Mortgage
Rates for all the Mortgage Loans and REO Loans, weighted on the
basis of the
respective Stated Principal Balances of such Mortgage Loans and REO
Loans
outstanding immediately prior to such Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan, the
fee
designated as such and payable to the Special Servicer pursuant to
the third
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan
as
to which a Workout Fee is payable, ____%.
SECTION 1.02 Certain Calculations in Respect of the Mortgage
Pool.
(a) All amounts collected in respect of any Group of
Cross-Collateralized Mortgage Loans in the form of payments from
Mortgagors,
Insurance Proceeds and Liquidation Proceeds, shall be applied by
the Master
Servicer among such Mortgage Loans in accordance with the express
provisions of
the related loan documents and, in the absence of such express
provisions, on a
pro rata basis in accordance with the respective amounts then "due
and owing" as
to each of the Mortgage Loans constituting such Group. All amounts
collected in
respect of or allocable to any particular individual Mortgage Loan
(whether or
not such Mortgage Loan is a Cross-Collateralized Mortgage Loan) in
the form of
payments from Mortgagors, Liquidation Proceeds or Insurance
Proceeds shall be
applied for purposes of this Agreement (including, without
limitation, for
purposes of determining distributions on the Certificates pursuant
to Article IV
and additional compensation payable to the Master Servicer, the
Special Servicer
and any Sub-Servicers) as follows: first, as a recovery of any
related
unreimbursed Servicing Advances and, if applicable, unpaid
Liquidation Expenses;
second, as a recovery of accrued and unpaid interest (excluding, in
the case of
a Hyper-Amortization Loan after its Anticipated Repayment Date,
Additional
Interest) at the related Mortgage Rate on such Mortgage Loan to but
not
including, as appropriate, the date of receipt or, in the case of a
full Monthly
Payment from any Mortgagor, the related Due Date; third, as a
recovery of
principal of such Mortgage Loan then due and owing, including,
without
limitation, by reason of acceleration of the Mortgage Loan
following a default
thereunder (or, if a Liquidation Event has occurred in respect of
such Mortgage
Loan, as a recovery of principal to the extent of its entire
remaining unpaid
principal balance); fourth, as a recovery of amounts to be
currently applied to
the payment of, or escrowed for the future payment of, real estate
taxes,
assessments, insurance premiums, ground rents (if applicable) and
similar items;
fifth, as a recovery of Reserve Funds to the extent then required
to be held in
escrow; sixth, as a recovery of any Prepayment Premium then due and
owing under
such Mortgage Loan; seventh, as a recovery of any Default Charges
then due and
owing under such Mortgage Loan; eighth, as a recovery of any
assumption fees and
modification fees then due and owing under such Mortgage Loan;
ninth, as a
recovery of any other amounts then due and owing
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under such Mortgage Loan other than remaining unpaid principal;
tenth, as an
early recovery of any remaining principal of such Mortgage Loan to
the extent of
its entire remaining unpaid principal balance; and, eleventh, in
the case of a
Hyper-Amortization Loan after its Anticipated Repayment Date, as a
recovery of
accrued and unpaid Additional Interest on such Hyper-Amortization
Loan, to but
not including the date of receipt. The Master Servicer shall, to
the fullest
extent permitted by applicable law and the related Mortgage Loan
documents,
apply all payments on and proceeds of each Mortgage Loan to amounts
actually due
and owing from the related Mortgagor in a manner consistent with
the foregoing
and shall maintain accurate records of how all such payments and
proceeds are
actually applied and are applied for purposes of this
Agreement.
(b) Collections in respect of each REO Property (exclusive of
amounts to be applied to the payment of the costs of operating,
managing,
maintaining and disposing of such REO Property) shall be applied
for purposes of
this Agreement (including, without limitation for purposes of
determining
distributions on the Certificates pursuant to Article IV and
additional
compensation payable to the Master Servicer, the Special Servicer
and any
Sub-Servicers) as follows: first, as a recovery of any related
unreimbursed
Servicing Advances; second, as a recovery of accrued and unpaid
interest
(excluding, in the case of an REO Loan that relates to a
Hyper-Amortization Loan
after its Anticipated Repayment Date, Additional Interest) on the
related REO
Loan at the related Mortgage Rate to but not including the Due Date
in the
Collection Period of receipt; third, as a recovery of principal of
the related
REO Loan to the extent of its entire unpaid principal balance;
fourth, as a
recovery of any Prepayment Premium then due and owing under such
REO Loan;
fifth, as a recovery of any other amounts (including, without
limitation,
Default Charges) deemed to be due and owing in respect of the
related REO Loan;
and, sixth, in the case of an REO Loan that relates to a
Hyper-Amortization Loan
after its Anticipated Repayment Date, as a recovery of accrued and
unpaid
Additional Interest on such REO Loan to but not including the date
of receipt.
(c) For the purposes of calculating distributions pursuant to
this
Agreement, Additional Interest on a Hyper-Amortization Loan or a
successor REO
Loan shall be deemed not to constitute principal or any portion
thereof and
shall not be added to the unpaid principal balance or Stated
Principal Balance
of such Hyper-Amortization Loan or successor REO Loan. To the
extent any
Additional Interest is not paid on a current basis, it shall be
deemed to be
deferred interest.
(d) Insofar as amounts received in respect of any Mortgage Loan
or
REO Property and allocable to fees and charges owing in respect of
such Mortgage
Loan or the related REO Loan, as the case may be, that constitute
additional
servicing compensation payable to the Master Servicer and/or
Special Servicer
pursuant to Section 3.11, are insufficient to cover the full amount
of such fees
and charges, such amounts shall be allocated between such of those
fees and
charges as are payable to the Master Servicer, on the one hand, and
such of
those fees and charges as are payable to the Special Servicer, on
the other, pro
rata in accordance with their respective entitlements, and such
payments so made
shall constitute the sole amount that will be paid to the Master
Servicer and
the Special Servicer with respect thereto.
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(e) The foregoing applications of amounts received in respect of
any
Mortgage Loan or REO Property shall be determined by the Master
Servicer and
reflected in the reports to be delivered thereby pursuant to
Section 4.02(b).
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ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement.
_____________________ is hereby
appointed, and does hereby agree to act, as Trustee hereunder and,
in such
capacity, to hold the Trust Fund in trust for the exclusive use and
benefit of
all present and future Certificateholders. It is not intended that
this
Agreement create a partnership or a joint-stock association.
(b) Each of the Depositor and, at the direction of the
Depositor
given pursuant to the Mortgage Loan Purchase Agreement, the
Mortgage Loan
Seller, concurrently with its execution and delivery hereof, does
hereby assign,
transfer, sell and otherwise convey to the Trustee without recourse
for the
benefit of the Certificateholders all the right, title and interest
of the
Depositor and the Mortgage Loan Seller, respectively, in, to and
under the
Mortgage Loans identified on the Mortgage Loan Schedule and all
other assets
included or to be included in REMIC I. Such assignment includes (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 or receivable after
the Cut-off
Date (other than payments of principal, interest and other amounts
due and
payable on the Mortgage Loans on or before the Cut-off Date),
together with all
documents delivered or caused to be delivered hereunder with
respect to such
Mortgage Loans by the Mortgage Loan Seller; (ii) any REO Property
acquired in
respect of a Mortgage Loan; and (iii) such funds or assets as from
time to time
are deposited in the Distribution Account, the Certificate Account
and the REO
Account (if established).
It is
intended that the conveyance of the Mortgage Loans and the
related
rights and property by the Depositor and the Mortgage Loan Seller
to the
Trustee, as provided in this Section be, and be construed as, an
absolute
transfer of the Mortgage Loans by the Depositor and the Mortgage
Loan Seller to
the Trustee for the benefit of the Certificateholders. It is,
further, not
intended that such conveyance be deemed a pledge of the Mortgage
Loans by the
Depositor or the Mortgage Loan Seller to the Trustee to secure a
debt or other
obligation of the Depositor or the Mortgage Loan Seller, as the
case may be.
However, in the event that the Mortgage Loans are held to be
property of the
Depositor or the Mortgage Loan Seller, or if for any reason this
Agreement is
held or deemed to create a security interest in the Mortgage Loans,
then it is
intended that, (i) this Agreement shall also be deemed to be a
security
agreement within the meaning of Articles 8 and 9 of the New York
Uniform
Commercial Code and the Uniform Commercial Code of any other
applicable
jurisdiction; (ii) the conveyance provided for in this Section
shall be deemed
to be a grant by the Depositor and the Mortgage Loan Seller to the
Trustee, for
the benefit of the Certificateholders, of a security interest in
all of their
respective right (including the power to convey title thereto),
title and
interest, whether now owned or hereafter acquired, in and to (A)
the Mortgage
Notes, the Mortgages, any related insurance policies and all other
documents in
the related Mortgage
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Files, (B) all amounts payable to the holders of the Mortgage Loans
in
accordance with the terms thereof and (C) all proceeds of the
conversion,
voluntary or involuntary, of the foregoing into cash, instruments,
securities or
other property, including without limitation all amounts from time
to time held
or invested in the Certificate Account, the Distribution Account or
the REO
Account, whether in the form of cash, instruments, securities or
other property;
(iii) the possession by the Trustee or its agent of the Mortgage
Notes and such
other items of property as constitute instruments, money,
negotiable documents
or chattel paper shall be deemed to be "possession by the secured
party" or
possession by a purchaser or a Person designated by such secured
party, for
purposes of perfecting the security interest pursuant to the New
York Uniform
Commercial Code and the Uniform Commercial Code of any other
applicable
jurisdiction (including, without limitation, Section 9-305, 8-313
or 8-321
thereof); and (d) notifications to, and acknowledgments, receipts
or
confirmations from, Persons holding such property shall be deemed
to be
notifications to, or acknowledgments, receipts or confirmations
from, financial
intermediaries, bailees or agents (as applicable) of the Trustee
for the purpose
of perfecting such security interest under applicable law. The
Depositor, the
Mortgage Loan Seller and the Trustee shall, to the extent
consistent with this
Agreement, take such actions as may be necessary to ensure that, if
this
Agreement were deemed to create a security interest in the Mortgage
Loans, such
security interest would be deemed to be a perfected security
interest of first
priority under applicable law and will be maintained as such
throughout the term
of this Agreement. At the Depositor's direction, the Trustee shall
execute and
deliver, and the Master Servicer shall (at its expense) file, all
filings
necessary to maintain the effectiveness of any original filings
necessary under
the Uniform Commercial Code as in effect in any jurisdiction to
perfect and
maintain the Trustee's security interest in or lien on the Trust
Fund, including
without limitation (A) continuation statements and (B) such other
statements as
may be occasioned by any transfer of any interest of the Trustee,
the Master
Servicer, the Special Servicer or the Depositor in the Trust Fund.
In connection
herewith, the Trustee shall have all of the rights and remedies of
a secured
party and creditor under the Uniform Commercial Code as in force in
the relevant
jurisdiction.
(c) In connection with the Mortgage Loan Seller's assignment
pursuant to subsection (b) above, the Mortgage Loan Seller shall
deliver to and
deposit with, or cause to be delivered to and deposited with, the
Trustee or a
Custodian appointed thereby (with a copy to the Master Servicer),
on or before
the Closing Date, the Mortgage File for each Mortgage Loan so
assigned by the
Mortgage Loan Seller hereunder. If the Mortgage Loan Seller is
unable to deliver
or cause the delivery of any original Mortgage Note, it may deliver
a copy of
such Mortgage Note, together with a lost note affidavit, and shall
thereby be
deemed to have satisfied the document delivery requirements of this
Section
2.01(c). If the Mortgage Loan Seller cannot so deliver, or cause to
be
delivered, as to any Mortgage Loan, the original or a copy of any
of the
documents and/or instruments referred to in clauses [(ii), (iv),
(viii), (xi)(A)
and (xii)] of the definition of "Mortgage File", with evidence of
recording or
filing (as the case may be) thereon, solely because of a delay
caused by the
public recording or filing office where such document or instrument
has been
delivered for recordation or filing, as the case may be, the
delivery
requirements of this Section 2.01(c) shall be deemed to have been
satisfied as
to such missing item, and such missing item shall be deemed to have
been
included in the related Mortgage File, provided that a copy of such
document or
instrument (without evidence of recording or filing thereon, but
certified
(which certificate may relate to multiple
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documents and/or instruments) by the Mortgage Loan Seller to be a
true and
complete copy of the original thereof submitted for recording or
filing, as the
case may be) is delivered to the Trustee or a Custodian appointed
thereby on or
before the Closing Date, and either the original of such missing
document or
instrument, or a copy thereof, with evidence of recording or
filing, as the case
may be, thereon, is delivered to the Trustee or such Custodian
within _____ days
of the Closing Date (or within such longer period after the Closing
Date as the
Trustee may consent to, which consent shall not be unreasonably
withheld so long
as the Mortgage Loan Seller has provided the Trustee with evidence
of such
submission for recording or filing, as the case may be, or has
certified to the
Trustee as to the occurrence of such submission for recording or
filing, as the
case may be, and is, as certified to the Trustee no less often than
monthly, in
good faith attempting to obtain from the appropriate recording or
filing office
such original or copy). If the Mortgage Loan Seller cannot or does
not so
deliver, or cause to be delivered, as to any Mortgage Loan, the
original of any
of the documents and/or instruments referred to in clauses [(iii),
(v), and
(xi)(B)] of the definition of "Mortgage File", because such
document or
instrument has been delivered for recording or filing, as the case
may be, the
delivery requirements of this Section 2.01(c) shall be deemed to
have been
satisfied as to such missing item, and such missing item shall be
deemed to have
been included in the related Mortgage File, provided that a copy of
such
document or instrument (without evidence of recording or filing
thereon, but
certified (which certificate may relate to multiple documents
and/or
instruments) by the Mortgage Loan Seller to be a true and complete
copy of the
original thereof submitted for recording or filing, as the case may
be) is
delivered to the Trustee or a Custodian appointed thereby on or
before the
Closing Date, and either the original of such missing document or
instrument, or
a copy thereof, with evidence of recording or filing, as the case
may be,
thereon, is delivered to the Trustee or such Custodian within _____
days of the
Closing Date (or within such longer period after the Closing Date
as the Trustee
may consent to, which consent shall not be unreasonably withheld so
long as the
Mortgage Loan Seller has provided the Trustee with evidence of such
submission
for recording or filing, as the case may be, or has certified to
the Trustee as
to the occurrence of such submission for recording or filing, as
the case may
be, and is, as certified to the Trustee no less often than monthly,
in good
faith attempting to obtain from the appropriate recording or filing
office such
original or copy). If the Mortgage Loan Seller cannot so deliver,
or cause to be
delivered, as to any Mortgage Loan, the original or a copy of the
related
lender's title insurance policy referred to in clause (ix) of the
definition of
"Mortgage File" solely because such policy has not yet been issued,
the delivery
requirements of this Section 2.01(c) shall be deemed to be
satisfied as to such
missing item, and such missing item shall be deemed to have been
included in the
related Mortgage File, provided that the Mortgage Loan Seller shall
have
delivered to the Trustee or a Custodian appointed thereby, on or
before the
Closing Date, a commitment for title insurance "marked-up" at the
closing of
such Mortgage Loan, and the Mortgage Loan Seller shall deliver to
the Trustee or
such Custodian, promptly following the receipt thereof, the
original related
lender's title insurance policy (or a copy thereof). In
addition,
notwithstanding anything to the contrary contained herein, if there
exists with
respect to any Group of related Cross-Collateralized Mortgage Loans
only one
original of any document referred to in the definition of "Mortgage
File"
covering all the Mortgage Loans in such Group, then the inclusion
of the
original of such document in the Mortgage File for any of the
Mortgage Loans in
such Group shall be deemed an inclusion of such original in the
Mortgage File
for each such Mortgage Loan.
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None of the Trustee, any Custodian, the Depositor, the Master
Servicer or the
Special Servicer shall in any way be liable for any failure by the
Mortgage Loan
Seller to comply with the delivery requirements of this Section
2.01(c).
If any of
the endorsements referred to in clause (i) of the definition of
"Mortgage File", any of the assignments of Mortgage referred to in
clause (iii)
of the definition of "Mortgage File", any of the assignments of
Assignment of
Leases referred to in clause (v) of the definition of "Mortgage
File", or any of
the assignments of Security Agreement referred to in clause (vii)
of the
definition of "Mortgage File" are delivered to the Trustee in
blank, the Trustee
shall (without being obligated to record or file such) be
responsible for
completing the related endorsement or assignment in the name of the
Trustee (in
such capacity).
(d) The Mortgage Loan Seller shall, as to each Mortgage Loan, at
its
own expense, promptly (and in any event within _____ days of the
Closing Date)
submit or cause to be submitted for recording or filing, as the
case may be, in
the appropriate public office for real property records or UCC
Financing
Statements, as appropriate, each assignment referred to in clauses
(iii) and (v)
of the definition of "Mortgage File" and each UCC-1, UCC-2 and
UCC-3, if any,
referred to in clause (xi)(B) of the definition of "Mortgage File".
Each such
assignment shall reflect that it should be returned by the public
recording
office to the Trustee 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
following filing. At such time as such assignments, UCC-1s, UCC-2s
and UCC-3s
have been returned to the Trustee, the Trustee shall promptly
forward a copy of
each thereof to the Master Servicer. If any such document or
instrument is lost
or returned unrecorded or unfiled, as the case may be, because of a
defect
therein, the Mortgage Loan Seller shall promptly prepare or cause
the
preparation of a substitute therefor or cure or cause the curing of
such defect,
as the case may be, and thereafter the Mortgage Loan Seller, shall,
at its own
expense, submit the substitute or corrected documents or cause such
to be
submitted for recording or filing, as appropriate.
(e) All documents and records in the Mortgage Loan Seller's
possession (or under its control) relating to the Mortgage Loans
that are not
required to be a part of a Mortgage File in accordance with the
definition
thereof, together with all Escrow Payments and Reserve Funds in the
possession
of the Mortgage Loan Seller (or under its control) with respect to
the Mortgage
Loans, shall be delivered or caused to be delivered by the Mortgage
Loan Seller
to the Master Servicer, within _____ days of the Closing Date, and
shall be
retained by the Master Servicer on behalf of the Trustee in trust
for the
benefit of the Certificateholders.
(f) The Mortgage Loan Seller shall, as to each Mortgage Loan
which
is secured by the interest of the related Mortgagor under a Ground
Lease, at its
own expense, promptly (and in any event within ____ days of the
Closing Date)
notify the related ground lessor of the transfer of such Mortgage
Loan to the
Trust pursuant to this Agreement and inform such ground lessor that
any notices
of default under the related Ground Lease should thereafter be
forwarded to the
Trustee.
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SECTION 2.02 Acceptance of REMIC I 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
any
exceptions noted on the Schedule of Exceptions to Mortgage File
Delivery
attached hereto as Schedule VI, to the provisions of Section 2.01
and to the
further review provided for in this Section 2.02, of, with respect
to each
Mortgage Loan, an original Mortgage Note endorsed to the Trustee,
an original or
a copy of the Mortgage (with evidence of recording thereon), and an
original
assignment of such Mortgage executed in favor of the Trustee (in
such capacity)
and of all other assets included in REMIC I, in good faith and
without notice of
any adverse claim, and declares that it or a Custodian on its
behalf holds and
will hold the documents delivered or caused to be delivered by the
Mortgage Loan
Seller in respect of the Mortgage Loans, and that it holds and will
hold such
other assets included in REMIC I, in trust for the exclusive use
and benefit of
all present and future Certificateholders.
(b) Within ___ days of the Closing Date (or, in the case of any
Mortgage Loan as to which a Servicing Transfer Event has occurred
during
such____-day period of which event the Trustee has notice, within
the shorter of
___ days of the Closing Date and ____ Business Days of the
Trustee's receiving
such notice), the Trustee or a Custodian on its behalf shall review
each of the
documents delivered or caused to be delivered by the Mortgage Loan
Seller with
respect to each Mortgage Loan pursuant to Section 2.01(c); and,
promptly
following such review, the Trustee shall, subject to Section
2.02(d), certify in
writing to each of the Depositor, the Master Servicer, the Special
Servicer and
the Mortgage Loan Seller that as to each Mortgage Loan listed in
the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full), and
except as
specifically identified in any exception report annexed to such
certification,
(i) all documents specified in clauses [(i) through (iii), (ix)]
and, if the
Mortgage Loan Schedule specifies that the related Mortgagor has a
leasehold
interest in the related Mortgaged Property, (xiii) of the
definition of
"Mortgage File" are in its possession or the possession of a
Custodian on its
behalf, or the Mortgage Loan Seller has otherwise satisfied the
delivery
requirements in respect of such documents in accordance with
Section 2.01(c),
(ii) all documents received by it or any Custodian in respect of
such Mortgage
Loan 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 [(ii),
(iii), (iv) and (vi)(B)] of the definition of "Mortgage Loan
Schedule" is
correct.
(c) The Trustee or a Custodian on its behalf shall review each
of
the documents relating to the Mortgage Loans received thereby
subsequent to the
Closing Date; and, on or about the first anniversary of the Closing
Date, the
Trustee shall, subject to Section 2.02(d), certify in writing to
each of the
Depositor, the Master Servicer, the Special Servicer and, the
Mortgage Loan
Seller that as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other
than any Mortgage Loan paid in full or otherwise liquidated), and
except as
specifically identified in any exception report annexed to such
certification,
(i) all documents specified in clauses [(i), (ii), (ix)] and, if
the Mortgage
Loan Schedule specifies that
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the related Mortgagor has a leasehold interest in the related
Mortgaged
Property, (xiii) of the definition of "Mortgage File" are in its
possession or
the possession of a Custodian on its behalf, or the Mortgage Loan
Seller has
otherwise satisfied the delivery requirements in respect of such
documents in
accordance with Section 2.01(c), (ii) it or a Custodian on its
behalf has
received either the original or copy of each of the assignments
specified in
clauses [(iii) and (v)] of the definition of "Mortgage File" that
were delivered
by the Mortgage Loan Seller with evidence of recording thereon,
(iii) all
documents received by it or any Custodian in respect of such
Mortgage Loan 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 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 [(ii), (iii), (iv)
and (vi)(B)]
of the definition of "Mortgage Loan Schedule", is correct.
(d) It is herein acknowledged that, notwithstanding any other
provision hereof, neither the Trustee nor any Custodian is under
any duty or
obligation (i) to determine whether any of the documents specified
in clauses
[(iv) through (viii), (x) through (xii) and (xiv) through (xv)] of
the
definition of "Mortgage File" exist or are required to be delivered
by the
Mortgage Loan Seller in respect of any Mortgage Loan 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, in recordable form or appropriate for the
represented
purpose, or that they are other than what they purport to be on
their face.
(e) If, in the process of reviewing the documents delivered or
caused to be delivered by the Mortgage Loan Seller pursuant to
Section 2.01(c),
the Trustee or any Custodian discovers that any document required
to have been
delivered pursuant to Section 2.01(c) has not been so delivered, or
discovers
that any of the documents that were delivered has not been properly
executed,
contains information that does not conform in any material respect
with the
corresponding information set forth in the Mortgage Loan Schedule,
or is
defective on its face (each, including, without limitation, that a
document is
missing, a "Document Defect"), or if, at any other time, the
Trustee or any
other party hereto discovers a Document Defect in respect of any
Mortgage Loan,
the party discovering such Document Defect shall promptly so notify
each of the
other parties hereto. If and when such party is notified of or
discovers any
error in the Mortgage Loan Schedule, the Mortgage Loan Seller shall
promptly
correct such error and distribute a new, corrected Mortgage Loan
Schedule to
each of the other parties hereto. Such new, corrected Mortgage Loan
Schedule
shall be deemed to amend and replace the existing Mortgage Loan
Schedule.
SECTION 2.03 Mortgage Loan Seller's Repurchase of Mortgage Loans
for
Document Defects and Certain Breaches of
Representations and Warranties.
(a) Within ___ days of the earlier of discovery or receipt of
notice
by the Mortgage Loan Seller, of a Document Defect in respect of any
Mortgage
Loan or a breach of any representation or warranty set forth in
Section 2.05(c)
in respect of any Mortgage Loan,
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which Document Defect or breach, as the case may be, materially and
adversely
affects the value of such Mortgage Loan or the interests of the
Certificateholders therein, the Mortgage Loan Seller shall cure
such Document
Defect or breach, as the case may be, in all material respects or
repurchase
(or, cause an Affiliate to purchase) the affected Mortgage Loan at
the
applicable Purchase Price by deposit of such Purchase Price into
the Certificate
Account and delivery to the Trustee of a written certification that
such deposit
has been made. Notwithstanding the immediately preceding sentence,
within ____
days of the earlier of discovery or receipt of notice by the
Mortgage Loan
Seller that there is a breach of the representation and warranty
set forth in
Section 2.05(c)(xxxi) (i.e., that any Mortgage Loan does not
constitute a
"qualified mortgage" within the meaning of Section 860G(a)(3) of
the Code), the
Mortgage Loan Seller shall repurchase such Mortgage Loan at the
applicable
Purchase Price by deposit of such Purchase Price into the
Certificate Account
and delivery to the Trustee of a written certification that such
deposit has
been made.
(b) In connection with any repurchase of a Mortgage Loan
contemplated by this Section 2.03, the Trustee, the Master Servicer
and the
Special Servicer shall each tender or cause to be tendered to the
Mortgage Loan
Seller, upon delivery to each of the Trustee, the Master Servicer
and the
Special Servicer of a receipt executed by the Mortgage Loan Seller,
all portions
of the Mortgage File and other documents and funds pertaining to
such Mortgage
Loan possessed by it (or any Custodian or Sub-Servicer on its
behalf), 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 or
at the direction of the Mortgage Loan Seller, in the same manner.
The form,
sufficiency and expense of all such instruments and certificates
shall be the
responsibility of the Mortgage Loan Seller.
(c) This Section 2.03 provides the sole remedies available to
the
Certificateholders, or to the Trustee on behalf of the
Certificateholders,
respecting any Document Defect or any breach of any representation
or warranty
set forth in Section 2.05(c) hereof. If the Mortgage Loan Seller
defaults on its
obligations to repurchase any Mortgage Loan in accordance with
Section 2.03(a)
hereof, or disputes its obligation to repurchase any Mortgage Loan
in accordance
with any such provision, the Trustee shall promptly notify the
Certificateholders and, subject to Sections 8.01 and 8.02 and its
right to
reimbursement pursuant to Section 8.05(b), shall take such action
as may be
appropriate to enforce such payment or performance, including,
without
limitation, the institution and prosecution of appropriate
proceedings. If it is
judicially determined or subsequently agreed that the Mortgage Loan
Seller is
required to repurchase such Mortgage Loan under Section 2.03(a) or
2.03(b)
hereof, the Mortgage Loan Seller shall reimburse the Trustee for
all necessary
and reasonable costs and expenses incurred in connection with such
enforcement,
and otherwise the Trustee's right of reimbursement shall be limited
to amounts
on deposit in the Distribution Account from time to time in
accordance with
Section 8.05(b) and to such other sources of security and indemnity
as shall
have been offered to the Trustee by the Certificateholders.
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SECTION 2.04 Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the
other parties to this Agreement and for the benefit of the
Certificateholders,
as of the Closing Date, that:
(i) The Depositor is a corporation duly organized, validly
existing
and in
good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the
Depositor,
and the
performance and compliance with the terms of this Agreement by
the
Depositor,
will not violate the Depositor's certificate of incorporation
or bylaws
or constitute a default (or an event which, with notice or
lapse
of time,
or both, would constitute a default) under, or result in the
breach of,
any material agreement or other instrument to which it is a
party or
which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter
into
and
consummate all transactions contemplated by this Agreement, has
duly
authorized
the execution, delivery and performance of this Agreement, and
has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery
by each of the other parties hereto, constitutes a valid, legal
and
binding obligation of the Depositor, enforceable against the
Depositor
in
accordance with the terms hereof, subject to (A) applicable
bankruptcy,
insolvency, reorganization, moratorium and other laws affecting
the
enforcement of creditors' rights generally, and (B) general
principles of
equity,
regardless of whether such enforcement is considered in a
proceeding
in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery
of this Agreement and its performance and compliance with the
terms of
this Agreement will not constitute a violation of, any law, any
order or
decree of any court or arbiter, or any order, regulation or
demand of
any federal, state or local governmental or regulatory
authority,
which violation, in the Depositor's good faith and reasonable
judgment,
is likely to affect materially and adversely either the ability
of the
Depositor to perform its obligations under this Agreement or
the
financial
condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as
contemplated herein requires no regulatory approval, other than any
such
approvals
as have been obtained, and is not subject to any bulk transfer
or similar
law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the
Depositor's
knowledge,
threatened against the Depositor which would prohibit the
Depositor
from entering into this Agreement or, in the Depositor's good
faith and
reasonable judgment, is likely to
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<PAGE>
materially
and adversely affect either the ability of the Depositor to
perform
its obligations under this Agreement or the financial condition
of
the
Depositor.
(b) Upon discovery by any of the parties hereto of a breach of
any
of the foregoing representations and warranties which materially
and adversely
affects the interests of the Certificateholders or any party
hereto, the party
discovering such breach shall give prompt written notice to each of
the other
parties hereto.
SECTION 2.05 Representations and Warranties of the Mortgage
Loan
Seller.
(a) The Mortgage Loan Seller hereby represents and warrants to
the
other parties hereto and for the benefit of the Certificateholders,
as of the
Closing Date, that:
(i) The Mortgage Loan Seller is a corporation duly organized,
validly
existing and in good standing under the laws of the State of
_______.
(ii) The execution and delivery of this Agreement by the
Mortgage
Loan
Seller, and the performance and compliance with the terms of
this
Agreement
by the Mortgage Loan Seller, will not violate the Mortgage Loan
Seller's
certificate of incorporation and by-laws or constitute a
default
(or an
event which, with notice or lapse of time, or both, would
constitute
a default) under, or result in the breach of, any material
agreement
or other instrument to which it is a party or which is
applicable
to it or any of its assets.
(iii) The Mortgage Loan Seller has the full power and authority
to
enter into
and consummate all transactions contemplated by this Agreement,
has duly
authorized the execution, delivery and performance of this
Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery
by each of the other parties hereto, constitutes a valid, legal
and
binding obligation of the Mortgage Loan Seller, enforceable
against
the
Mortgage Loan Seller in accordance with the terms hereof, subject
to
(A)
applicable bankruptcy, insolvency, reorganization, moratorium
and
other laws
affecting the enforcement of creditors' rights generally, and
(B)
general principles of equity, regardless of whether such
enforcement
is
considered in a proceeding in equity or at law.
(v) The Mortgage Loan Seller is not in violation of, and its
execution
and delivery of this Agreement and its performance and
compliance
with the terms of this Agreement will not constitute a
violation
of, any law, any order or decree of any court or arbiter, or
any
order,
regulation or demand of any federal, state or local governmental
or
regulatory
authority, which violation, in the Mortgage Loan Seller's good
faith and
reasonable judgment, is likely to affect materially and
adversely either the
ability of the Mortgage Loan Seller to perform its
obligations under this Agreement or the financial condition of
the
Mortgage
Loan Seller.
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<PAGE>
(vi) No litigation is pending or, to the best of the Mortgage
Loan
Seller's
knowledge, threatened against the Mortgage Loan Seller which
would
prohibit the Mortgage Loan Seller from entering into this
Agreement
or, in the
Mortgage Loan Seller's good faith and reasonable judgment, is
likely to
materially and adversely affect either the ability of the
Mortgage
Loan Seller to perform its obligations under this Agreement or
the
financial condition of the Mortgage Loan Seller.
(b) The Mortgage Loan Seller hereby represents and warrants
with
respect to (but solely with respect to) each Mortgage Loan, to the
other parties
hereto and for the benefit of the Certificateholders, as of the
date hereinbelow
specified or, if no such date is specified, as of the Closing Date,
that:
(i) Immediately prior to the transfer thereof by the Mortgage
Loan
Seller to
the Trustee, the Mortgage Loan Seller had good and marketable
title to,
and was the sole owner and holder of, such Mortgage Loan, free
and clear
of any and all liens, encumbrances and other interests on, in
or
to such
Mortgage Loan (other than, in certain cases, the right of a
sub-servicer to primary service such Mortgage Loan).
(ii) The Mortgage Loan Seller had full right and authority to
sell,
assign and
transfer such Mortgage Loan to or the Trustee.
(iii) The information pertaining to such Mortgage Loan set forth
in
the
Mortgage Loan Schedule was true and correct in all material
respects
as of the
Cut-off Date.
(iv) Such Mortgage Loan was not, as of the Cut-off Date or at
any
time
during the twelve-month period prior thereto, 30 days or more
delinquent
in respect of any Monthly Payment of principal and/or interest
required
thereunder, without giving effect to any applicable grace
period.
(v) Each Mortgage securing such Mortgage Loan constitutes a
valid
first lien
upon the related Mortgaged Property, including, without
limitation, all buildings located thereon and all fixtures
attached
thereto,
subject only to (and such Mortgaged Property is free and clear
of
all
encumbrances and liens having priority over the lien of such
Mortgage,
except
for) (A) the lien of current real property taxes and
assessments
not yet
due and payable, (B) covenants, conditions and restrictions,
rights of
way, easements and other matters of public record, (C) the
right
of tenants
(whether under ground leases, space leases or operating leases)
at the
Mortgaged Property to remain following a foreclosure or similar
proceeding
(provided that such tenants are performing under such leases),
(D)
exceptions and exclusions specifically referred to in the
lender's
title
insurance policy issued or, as evidenced by a "marked-up"
commitment, to be issued in respect of such Mortgage Loan and (E)
if such
Mortgage
Loan is cross-collateralized with any other Mortgage Loan, the
lien of
the Mortgage for such other Mortgage Loan (the exceptions set
forth in
the foregoing clauses (A), (B), (C), (D), and (E),
collectively,
"Permitted
Encumbrances"). Such Permitted Encumbrances do not materially
interfere
with the security intended to be provided by the related
Mortgage(s), the current use of the related Mortgaged Property, or
the
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current
ability of such Mortgaged Property to generate net operating
income
sufficient to service the Mortgage Loan.
(vi) The lien of each related Mortgage is insured by an ALTA
lender's
title insurance policy, or its equivalent as adopted in the
applicable
jurisdiction, issued by a nationally recognized title insurance
company,
insuring the originator of the related Mortgage Loan, its
successors
and assigns, as to the first priority lien of the Mortgage in
the
original principal amount of the related Mortgage Loan after
all
advances
of principal, subject only to Permitted Encumbrances (or, if a
title
insurance policy has not yet been issued in respect of any
Mortgage
Loan, a
policy meeting the foregoing description is evidenced by a
commitment
for title insurance "marked-up" at the closing of such loan).
(vii) The Mortgage Loan Seller has not waived any material
default,
breach,
violation or event of acceleration existing under the related
Mortgage
or Mortgage Note.
(viii)
There is no valid offset, defense or counterclaim to such
Mortgage
Loan.
(ix) The Mortgage Loan Seller has not received actual notice
(A)
that there
is any proceeding pending or threatened for the total or
partial
condemnation of the related Mortgaged Property or (B) that
there
is any
material damage at the related Mortgaged Property that
materially
and
adversely affects the value of such Mortgaged Property.
(x) At origination, such Mortgage Loan complied in all material
respects
with all requirements of federal, state and local laws,
including,
without limitation, laws pertaining to usury, relating to the
origination of such Mortgage Loan.
(xi) The proceeds of such Mortgage Loan have been fully
disbursed,
and there
is no requirement for future advances thereunder.
(xii) The Mortgage Note and Mortgage(s) for such Mortgage Loan
and
all other
documents and instruments evidencing, guaranteeing, insuring or
otherwise
securing such Mortgage Loan are each the legal, valid and
binding
obligation of the maker thereof (subject to any non-recourse
provisions
contained in any of the foregoing agreements and any applicable
state
anti-deficiency legislation), enforceable in accordance with
their
respective
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other
laws
relating
to or affecting the rights of creditors generally and by
general
principles
of equity (regardless of whether such enforcement is considered
in a
proceeding in equity or at law).
(xiii) The related Mortgaged Property is: (A) if a commercial
property,
insured by a fire and extended perils insurance policy, issued
by an
insurer meeting the requirements of such Mortgage Loan in an
amount
not less
than the greater of (1) the
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replacement cost and (2) the amount necessary to avoid the
operation of
any
co-insurance provisions with respect to such Mortgaged Property,
and
is also
covered (except if such Mortgaged Property is operated as a
mobile
home
park), by rental insurance in an amount equal to the gross
rentals
for at
least a 12-month period (or, in the case of a Mortgaged
Property
not having
an elevator, for at least a 6-month period) and broad form
boiler and
machinery insurance; no such insurance policy provides that it
may be
canceled, endorsed, altered or reissued to effect a change in
coverage
unless such insurer shall have first given the mortgagee under
such
Mortgage Loan thirty days prior written notice, and no notice
has
been
received as of the date hereof; all premiums required to be paid
on
such
policy have been paid; the related Mortgage obligates the
Mortgagor
to
maintain all such insurance and, at the Mortgagor's failure to do
so,
authorizes
the mortgagee under such Mortgage Loan to purchase such
insurance
at the Mortgagor's cost and expense and to seek reimbursement
from such
Mortgagor; and (B) if a multifamily property, insured by a fire
and
extended perils insurance policy, issued by an insurer meeting
the
requirements of such Mortgage Loan and covering rent loss and such
other
hazards,
casualties, liabilities and contingencies the Master Servicer
shall
require and in such amounts and for such periods as the Master
Servicer
shall require; at least thirty days prior to the expiration
date
of such
policy, the related Mortgage requires the Mortgagor to deliver
to
the
mortgagee under such Mortgage Loan a renewal policy in form
satisfactory to the Master Servicer; all premiums required to be
paid on
such
policy have been paid; the Mortgage obligates the related
Mortgagor
to
maintain all such insurance and, upon such Mortgagor's failure to
do
so,
authorizes the mortgagee to purchase such insurance at the
Mortgagor's
cost and
expense and to seek reimbursement from such Mortgagor. In
addition,
if the related Mortgaged Property is located in a federally
designated
special flood hazard area, the related Mortgagor is required to
maintain
flood insurance in respect thereof (exclusive of any parking
lot
or unused
or undeveloped portion thereof).
(xiv) In connection with or subsequent to the origination of
such
Mortgage
Loan, one or more environmental site assessments (or an update
of
a
previously conducted assessment) were performed with respect to
the
related
Mortgaged Property, and the Mortgage Loan Seller, having made
no
independent inquiry other than reviewing the resulting report(s)
and/or
employing
an environmental consultant to perform the assessment(s)
referenced
herein, has no knowledge of any material and adverse
environmental condition or circumstance affecting such Mortgaged
Property
that was not
disclosed in the related report(s).
(xv) Except as indicated on the Mortgage Loan Schedule, such
Mortgage
Loan is not cross-collateralized with other Mortgage Loans in
the
Mortgage
Pool. Such Mortgage Loan is not cross-collateralized with a
mortgage
loan outside the Mortgage Pool.
(xvi) Except as indicated on Schedule III hereto or as contained
in
the
related Mortgage File, the terms of the Mortgage Note and
Mortgage(s)
for such
Mortgage Loan have not been impaired, waived, altered or
modified
in any
material respect.
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(xvii) There are no delinquent taxes, ground rents, insurance
premiums,
assessments, including, without limitation, assessments payable
in future
installments, or other similar outstanding charges (and, to the
actual
knowledge of the Mortgage Loan Seller, at origination of such
Mortgage
Loan, there were no delinquent water charges or sewer rents)
affecting
the related Mortgaged Property.
(xviii) The interest of the Mortgagor in the related Mortgaged
Property
consists of a fee simple and/or leasehold interest in real
property.
(xix) Such Mortgage Loan is a whole loan and not a
participation
interest.
(xx) The assignment of the related Mortgage to the Trustee
constitutes the legal, valid and binding assignment of such
Mortgage from
the
relevant assignor to the Trustee, and the assignment of the
related
Assignment
of Leases, if any, or of any other agreement executed in
connection
with such Mortgage Loan to the Trustee constitutes the legal,
valid and
binding assignment thereof from the relevant assignor to the
Trustee.
(xxi) All escrow deposits (including capital improvements and
environmental remediation reserves) relating to such Mortgage Loan
that
were
required to be delivered to the mortgagee under the terms of
the
related
loan documents, have been received and, to the extent of any
remaining
balances of such escrow deposits, are in the possession, or
under the
control of the Mortgage Loan Seller or its agents (which shall
include
the Master Servicer).
(xxii) As of the date of origination of such Mortgage Loan and as
of
the
Closing Date, the related Mortgaged Property was and is free and
clear
of any
mechanics' and materialmen's liens or liens in the nature
thereof
which create a
lien prior to that created by the related Mortgage(s).
(xxiii) No improvement that was included for the purpose of
determining the appraised value of the related Mortgaged Property
at the
time of
origination of such Mortgage Loan lies outside the boundaries
and
building
restriction lines of such property to any material extent, and
no
improvements on adjoining properties materially encroach upon
such
Mortgaged
Property to any material extent, and no improvement located on
or forming
part of such Mortgaged Property is in material violation of any
applicable
zoning laws or ordinances (except to the extent that they may
constitute
legal non-conforming uses).
(xxiv) To the extent required under applicable law as of the
Closing
Date and
necessary for the enforceability or collectability of the
Mortgage
Loan, the originator of such Mortgage Loan was authorized to do
business
in the jurisdiction in which the related Mortgaged Property is
located at
all times when it held the Mortgage Loan.
(xxv) There is no material default, breach or event of
acceleration
existing
under the related Mortgage or Mortgage Note, and the Mortgage
Loan
Seller has not received actual notice of any event (other than
payments
due but not yet delinquent)
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that, with
the passage of time or with notice and the expiration of any
grace or
cure period, would constitute such a material default, breach
or
event of
acceleration; provided, however, that this representation and
warranty
does not cover any default, breach or event of acceleration
that
specifically pertains to any matter otherwise covered by any
other
representation and warranty made by the Mortgage Loan Seller in any
of
paragraphs
(iv), (xiv), (xvii), (xxi), (xxiii) and (xxix) of this Section
2.05(c).
(xxvi) If such Mortgage Loan is secured in whole or in part by
the
interest
of a Mortgagor under a Ground Lease and by the related fee
interest,
such fee interest is subordinate to the related Mortgage and
the
related
Mortgage does not by its terms provide that it will be
subordinated to the lien of any mortgage or any other lien upon
such fee
interest.
(xxvii) Such Mortgage Loan does not contain any equity
participation
by the
lender, provide for any contingent or additional interest in
the
form of
participation in the cash flow of the related Mortgaged
Property
or provide
for the negative amortization of interest, except that, as
identified
on the Mortgage Loan Schedule, such Mortgage Loan may provide
that
during the period commencing on a specified date and continuing
until
such
Mortgage Loan is paid in full, additional interest will accrue
(and
may be
compounded) on such Mortgage Loan and shall be payable only
after
the
outstanding principal of the Mortgage Loan is paid in full.
(xxviii) No holder of such Mortgage Loan has, to the Mortgage
Loan
Seller's
knowledge, advanced funds or induced, solicited or knowingly
received
any advance of funds from a party other than the owner of the
related
Mortgaged Property, directly or indirectly, for the payment of
any
amount
required by the Mortgage Loan.
(xxix) To the Mortgage Loan Seller's knowledge, based on due
diligence
customarily performed in the origination of comparable mortgage
loans, as
of the date of origination of such Mortgage Loan, (A) the
related
Mortgagor was in possession of all material licenses, permits
and
authorizations required by applicable laws for the ownership and
operation
of the
related Mortgaged Property as it was then operated and (B) all
such
licenses,
permits and authorizations were valid and in full force and
effect.
(xxx) The related Mortgage(s) or Mortgage Note, together with
applicable
state law, contains customary and enforceable provisions
(subject
to the exceptions set forth in clauses (c)(v) and (c)(xii)
above)
such as to
render the rights and remedies of the holders thereof adequate
for the
practical realization against the related Mortgaged Property of
the
principal benefits of the security intended to be provided
thereby.
(xxxi) Such Mortgage Loan is a "qualified mortgage" within the
meaning of
Section 860G(a)(3) of the Code.
(xxxii) If such Mortgage Loan is secured by a mortgage lien on
the
applicable
Mortgagor's leasehold interest in the related Mortgaged
Property,
but not a mortgage lien on the related fee interest, then
either
(A) the
related ground lessor has subordinated its interest in the
related
Mortgaged
Property to the interest of the holder
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of the
Mortgage Loan or (B) the related ground lessor has granted the
holder of the
Mortgage Loan the right to cure any default or breach by the
lessee.
Upon the foreclosure of such Mortgage Loan (or acceptance of a
deed in
lieu thereof), the related Ground Lease is assignable to the
mortgagee
under the leasehold estate and its assigns without the consent
of the
ground lessor thereunder.
(xxxiii) No fraud with respect to such Mortgage Loan has taken
place
on the
part of the Mortgage Loan Seller in connection with the
origination
of such Mortgage
Loan.
(xxxiv) The terms of such Mortgage Loan provide or, at lender's
option,
permit, and the terms of this Agreement and any Sub-Servicing
Agreement
to which such Mortgage Loan is subject provide for purposes of
calculating distributions on the Certificates and additional
compensation
payable to
the Master Servicer, the Special Servicer and any related
Sub-Servicer, that payments on and proceeds of such Mortgage Loan
will be
applied to
principal and interest at the related Mortgage Rate (excluding,
in the
case of a Hyper-Amortization Loan after its Anticipated
Repayment
Date,
Additional Interest) due and owing at the time such payments or
proceeds
are received, prior to being applied to any Default Charges,
assumption
fees and modification fees then due and owing.
(xxxv) If such Mortgage Loan is, as of the Closing Date, subject
to
a
Sub-Servicing Agreement, such Sub-Servicing Agreement provides that
the
related
Sub-Servicer is not to receive any sub-servicing compensation
with
respect to
such Mortgage Loan during any period that such Mortgage Loan is
a
Specially Serviced Mortgage Loan or an REO Loan (except for any
Termination Strip payable to a Sub-Servicer in connection with
a
termination thereof without cause as contemplated by Section
3.22(d)
hereof).
(xxxvi) The servicing and collection practices used with respect
to
such
Mortgage Loan have been in all material respects legal and
prudent
and have
met customary standards utilized by prudent institutional
multifamily and commercial mortgage loan servicers.
(xxxvii) Unless the related Mortgaged Property is owner
occupied,
the
Mortgage File for such Mortgage Loan contains an Assignment of
Leases
either as
a separate instrument or incorporated into the related
Mortgage,
which
creates, in favor of the holder, a valid, perfected and
enforceable
lien of
the same priority as the related Mortgage, in the property and
rights
described therein; provided that the enforceability of such lien
is
subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
and other
laws affecting the enforcement of creditors' rights generally,
and by the
application of the rules of equity. The Mortgage Loan Seller
has the
full right to assign to the Trustee such Assignment of Leases
and
the lien
created thereby as described in the immediately preceding
sentence.
No Person other than the Mortgagor owns any interest in any
payments
due under the related leases.
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(xxxviii) If the related Mortgaged Property securing such
Mortgage
Loan is
encumbered by secured subordinated debt, then either (A) the
subordinate debt constitutes a "cash flow" mortgage loan (that
is,
payments
are required to be made thereon only to the extent that certain
net cash
flow from the related Mortgaged Property (calculated in
accordance
with the related loan documents) is sufficient after payments
on such
Mortgage Loan have been made and certain expenses have been
paid)
or (B) the
holder of the subordinate debt has agreed not to foreclose on
the
related Mortgaged Property so long as such Mortgage Loan is
outstanding and the Special Servicer on behalf of the Trust is
not
pursuing a
foreclosure action.
(xxxix) If such Mortgage Loan is secured by a mortgage lien on
the
applicable
Mortgagor's leasehold interest under a Ground Lease, such
Ground
Lease has an original term (or an original term plus one or
more
optional
renewal terms, which, under all circumstances, may be
exercised,
and will
be enforceable, by the mortgagee if it takes possession of such
leasehold
interest) that extends not less than 10 years beyond the stated
maturity
of the related Mortgage Loan.
(xl) In the event fraud was committed by the Mortgagor in
connection
with the
origination thereof, such Mortgage Loan becomes a recourse
obligation
of the Mortgagor.
(xli) If such Mortgage Loan is a Hyper-Amortization Loan, it
commenced
amortizing on its initial scheduled Due Date and provides that:
(i) its
Mortgage Rate will increase by no more than two percentage
points
in
connection with the passage of its Anticipated Repayment Date; (ii)
its
Anticipated Repayment Date is not less than seven years following
the
origination of such Mortgage Loan; (iii) any cash flow from the
related
Mortgaged
Property that is applied to amortize such Mortgage Loan
following
its Anticipated Repayment Date shall, to the extent such net
cash flow
is in excess of the Monthly Payment payable therefrom, be net
of
budgeted
and discretionary (servicer approved) capital expenditures; and
(iv) if
the property manager for the related Mortgaged Property can be
removed by or at
the direction of the lender on the basis of a debt
service
coverage test, the subject debt service coverage ratio shall be
calculated
without taking account of any increase in the related Mortgage
Rate on
such Mortgage Loan's Anticipated Repayment Date. No
Hyper-Amortization Loan provides that the property manager for the
related
Mortgaged
Property can be removed by or at the direction of the lender
solely
because of the passage of the related Anticipated Repayment
Date.
(xlii) At origination of such Mortgage Loan, the related
Mortgagor
was not,
to the best of the Mortgage Loan Seller's actual knowledge, a
debtor in
any state or federal bankruptcy or insolvency proceeding.
(xliii) If such Mortgage Loan is secured by the interest of the
related
Mortgagor under a Ground Lease, then, as of the origination of
such
Mortgage Loan, such Ground Lease was in full force and effect and,
to
the
Mortgage Loan Seller's actual knowledge, no material default
existed
under such
Ground Lease.
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(xliv) The Mortgage Loan Seller has no actual knowledge of any
pending
litigation or other legal proceedings involving the related
Mortgagor
or the related Mortgaged Property that can reasonably be
expected
to materially interfere with the security intended to be
provided
by the
related Mortgage, the current use of the related Mortgaged
Property, or the
current ability of the Mortgaged Property to generate net
operating
income sufficient to service the Mortgage Loan.
(xlv) If such Mortgage Loan had a Cut-off Date Balance greater
than
1% of the
Initial Pool Balance, the related Mortgagor has covenanted in
its
organizational documents and/or the Mortgage Loan documents to own
no
significant asset other than the related Mortgaged Property,
Mortgaged
Properties
securing other Mortgage Loans and assets incidental to its
ownership
and operation of such Mortgaged Property or Properties.
(xlvi) Except as identified on Schedule IV hereto, neither the
related
Mortgage Note nor the related Mortgage requires the mortgagee
to
release all or any
material portion of the related Mortgaged Property from
the lien
of the related Mortgage except upon payment in full of all
amounts
due under the related Mortgage Loan.
(xlvii) Except as identified on Schedule V hereto, such
Mortgage
Loan does
not permit the related Mortgaged Property to be encumbered
subsequent
to the Closing Date by any lien junior to or of equal priority
with the
lien of the related Mortgage without the prior written consent
of
the holder
thereof.
(c) It is understood and agreed that the representations and
warranties set forth in this Section 2.05 shall survive delivery of
the
respective Mortgage Files to the Trustee or a Custodian on its
behalf and shall
inure to the benefit of the Persons for whose benefit they were
made for so long
as the Trust remains in existence, notwithstanding any restrictive
or qualified
endorsement or assignment. Upon discovery by any of the parties
hereto of a
breach of any of the representations and warranties set forth in
subsection (a)
above which materially and adversely affects the interests of
the
Certificateholders or any party hereto or a breach of any of the
representations
and warranties set forth in subsection (b) above which materially
and adversely
affects the value of any Mortgage Loan or the interests therein of
the
Certificateholders, the party discovering such breach shall give
prompt written
notice to each of the other parties hereto.
SECTION 2.06 Representations and Warranties of the Master
Servicer.
(a) The Master Servicer hereby represents and warrants to the
other
parties hereto and for the benefit of the Certificateholders, as of
the Closing
Date, that:
(i) The Master Servicer is duly organized, validly existing and
in
good
standing as a ________________ under the laws of the State of
_____________, and the Master Servicer is in compliance with the
laws of
each State
in which any
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Mortgaged
Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer,
and the performance and compliance with the terms of this
Agreement
by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event
which, with
notice or
lapse of time, or both, would constitute a default) under, or
result in
the breach of, any material agreement or other instrument to
which it
is a party or which is applicable to it or any of its assets,
which
default, in the Master Servicer's good faith and reasonable
judgment,
is likely to materially and adversely affect either the ability
of the
Master Servicer to perform its obligations under this Agreement
or
the
financial condition of the Master Servicer.
(iii) The Master Servicer has the full power and authority to
enter
into and
consummate all transactions contemplated by this Agreement, has
duly
authorized the execution, delivery and performance of this
Agreement,
and has
duly executed and delivered this Agreement.
(iv) This
Agreement, assuming due authorization, execution and
delivery
by each of the other parties hereto, constitutes a valid, legal
and
binding obligation of the Master Servicer, enforceable against
the
Master
Servicer in accordance with the terms hereof, subject to (A)
applicable
bankruptcy, insolvency, reorganization, moratorium and other
laws
affecting the enforcement of creditors' rights generally, and
(B)
general
principles of equity, regardless of whether such enforcement is
considered
in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its
execution
and
delivery of this Agreement and its performance and compliance with
the
terms of
this Agreement will not constitute a violation of, any law, any
order or
decree of any court or arbiter, or any order, regulation or
demand of
any federal, state or local governmental or regulatory
authority,
which violation, in the Master Servicer's good faith and
reasonable
judgment, is likely to affect materially and adversely either
the
ability of the Master Servicer to perform its obligations under
this
Agreement
or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's
knowledge, threatened against the Master Servicer which would
prohibit
the Master Servicer from entering into this Agreement or, in
the
Master
Servicer's good faith and reasonable judgment, is likely to
materially
and adversely affect either the ability of the Master Servicer
to perform
its obligations under this Agreement or the financial condition
of the
Master Servicer.
(vii) Each officer or employee of the Master Servicer that has
responsibilities concerning the servicing and administration of
the
Mortgage
Loans is covered by errors and omissions insurance in the
amounts
and with
the coverage required by Section 3.07(c). None of the Master
Servicer,
its general partner or any of their
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respective
officers or employees that is involved in the servicing or
administration of by the Mortgage Loans has been refused such
coverage or
insurance.
(b) The representations and warranties of the Master Servicer
set
forth in Section 2.06(a) shall survive the execution and delivery
of this
Agreement and inure to the benefit of the Persons for whose benefit
they were
made for so long as the Trust remains in existence. Upon discovery
by any of the
parties hereto of a breach of any of such representations and
warranties which
materially and adversely affects the interests of the
Certificateholders or any
party hereto, the party discovering such breach shall give prompt
written notice
to each of the other parties hereto.
(c) Each successor Master Servicer (if any) shall be deemed to
have
made, as of the date of its succession, each of the representations
set forth in
Section 2.06(a), subject to such appropriate modifications to the
representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect
such
successor's jurisdiction of organization and whether it is a
corporation,
partnership, bank, association or other type of organization, and
without regard
to the references to general partner if such successor is not a
partnership.
SECTION 2.07 Representations and Warranties of the Special
Servicer.
(a) The Special Servicer hereby represents and warrants to the
other
parties hereto and for the benefit of the Certificateholders, as of
the Closing
Date, that:
(i) The Special Servicer is duly organized, validly existing and
in
good
standing as a ____________ under the laws of the State of
______________, and the Special Servicer is in compliance with the
laws of
each State
in which any Mortgaged Property is located to the extent
necessary
to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the
Special
Servicer,
and the performance and compliance with the terms of this
Agreement
by the Special Servicer, will not violate the Special
Servicer's
organizational documents or constitute a default (or an event
which, with
notice or
lapse of time, or both, would constitute a default) under, or
result in
the breach of, any material agreement or other instrument to
which it
is a party or which is applicable to it or any of its assets,
which
default, in the Special Servicer's good faith and reasonable
judgment,
is likely to materially and adversely effect either the ability
of the
Special Servicer to perform its obligations under this Agreement
or
the
financial condition of the Special Servicer.
(iii) The Special Servicer has the full power and authority to
enter
into and
consummate all transactions contemplated by this Agreement, has
duly
authorized the execution, delivery and performance of this
Agreement,
and has
duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery
by each of the other parties hereto, constitutes a valid, legal
and
binding obligation of the Special Servicer, enforceable against
the
Special
Servicer in accordance with the terms
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hereof,
subject to (A) applicable bankruptcy, insolvency,
reorganization,
moratorium
and other laws affecting the enforcement of creditors' rights
generally,
and (B) general principles of equity, regardless of whether
such
enforcement is considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its
execution
and
delivery of this Agreement and its performance and compliance with
the
terms of
this Agreement will not constitute a violation of, any law, any
order or
decree of any court or arbiter, or any order, regulation or
demand of
any federal, state or local governmental or regulatory
authority,
which violation, in the Special Servicer's good faith and
reasonable
judgment, is likely to affect materially and adversely either
the
ability of the Special Servicer to perform its obligations under
this
Agreement
or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's
knowledge, threatened against the Special Servicer which would
prohibit
the Special Servicer from entering into this Agreement or, in
the
Special
Servicer's good faith and reasonable judgment, is likely to
materially
and adversely affect either the ability of the Special Servicer
to perform
its obligations under this Agreement or the financial condition
of the
Special Servicer.
(vii) Each officer or employee of the Special Servicer that has
responsibilities concerning the servicing and administration of
the
Mortgage
Loans is covered by errors and omissions insurance in the
amounts
and with
the coverage required by Section 3.07(c). None of the Special
Servicer,
its general partner or any of their respective officers or
employees
that is involved in the servicing or administration of the
Mortgage
Loans has been refused such coverage or insurance.
(b) The representations and warranties of the Special Servicer
set
forth in Section 2.07(a) shall survive the execution and delivery
of this
Agreement and inure to the benefit of the Persons for whose benefit
they were
made for so long as the Trust remains in existence. Upon discovery
by any of the
parties hereto of a breach of any of such representations and
warranties which
materially and adversely affects the interests of the
Certificateholders or any
party hereto, the party discovering such breach shall give prompt
written notice
to each of the other parties hereto.
(c) Each successor Special Servicer (if any) shall be deemed to
have
made, as of the date of its succession, each of the representations
set forth in
Section 2.07(a), subject to such appropriate modifications to the
representation
and warranty set forth in Section 2.07(a)(i) to accurately reflect
such
successor's jurisdiction of organization and whether it is a
corporation,
partnership, bank, association or other type of organization, and
without regard
to the references to general partner if such successor is not a
partnership.
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SECTION 2.08 Representations and Warranties of the Trustee and
the
REMIC Administrator.
(a) _______________________________________, [both] in its
capacity
as Trustee [and in its capacity as REMIC Administrator] (the
"Bank"), hereby
represents and warrants to the other parties hereto and for the
benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Bank is a national bank duly organized, validly existing
and
in good
standing under the laws of the [United States] and is, shall be
or, if
necessary, shall appoint a co-trustee that is, in compliance
with
the laws
of each State in which any Mortgaged Property is located to the
extent
necessary to ensure the enforceability of each Mortgage Loan and
to
perform
its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank,
and
the
performance and compliance with the terms of this Agreement by
the
Bank, do
not violate the Bank's organizational documents or constitute a
default
(or an event which, with notice or lapse of time, or both,
would
constitute
a default) under, or result in the breach of, any material
agreement
or other instrument to which it is a party or which is
applicable
to it or any of its assets, which default, in the Bank's good
faith and
reasonable judgment, is likely to materially and adversely
affect
either the ability of the Bank to perform its obligations under
this
Agreement or the financial condition of the Bank.
(iii) The Bank has the full power and authority to enter into
and
consummate
all transactions contemplated by this Agreement, has duly
authorized
the execution, delivery and performance of this Agreement, and
has duly
executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery
by each of the other parties hereto, constitutes a valid, legal
and
binding obligation of the Bank, enforceable against the Bank in
accordance
with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting
the
enforcement of creditors' rights generally, and (B) general
principles of
equity,
regardless of whether such enforcement is considered in a
proceeding
in equity or at law.
(v) The Bank is not in violation of, and its execution and
delivery
of this
Agreement and its performance and compliance with the terms of
this
Agreement will not constitute a violation of, any law, any order
or
decree of
any court or arbiter, or any order, regulation or demand of any
federal,
state or local governmental or regulatory authority, which
violation,
in the Bank's good faith and reasonable judgment, is likely to
affect
materially and adversely either the ability of the Bank to
perform
its
obligations under this Agreement or the financial condition of
the
Bank.
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(vi) No litigation is pending or, to the best of the Bank's
knowledge,
threatened against the Bank which would prohibit the Bank from
entering
into this Agreement or, in the Bank's good faith and reasonable
judgment,
is likely to materially and adversely affect either the ability
of the
Bank to perform its obligations under this Agreement or the
financial
condition of the Bank.
(b) The representations and warranties of the Bank set forth in
Section 2.08(a) shall survive the execution and delivery of this
Agreement and
shall inure to the benefit of the Persons for whose benefit they
were made for
so long as the Trust remains in existence. Upon discovery by any of
the parties
hereto of a breach of any of such representations and warranties
which
materially and adversely affects the interests of the
Certificateholders or any
party hereto, the party discovering such breach shall give prompt
written notice
to each of the other parties hereto.
(c) Each successor Trustee or REMIC Administrator (if any and
regardless of whether the Trustee and the REMIC Administrator are
different
Persons) shall be deemed to have made, as of the date of its
succession, each of
the representations set forth in Section 2.08(a), subject to such
appropriate
modifications to the representation and warranty set forth in
Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization
and whether
it is a corporation, partnership, bank, association or other type
of
organization. In any such case, the term "Bank" shall be deemed to
mean such
successor Trustee or the REMIC Administrator, as appropriate.
SECTION 2.09 Issuance of the Class R-I Certificates; Creation of
the
REMIC I Regular Interests.
Concurrently with the assignment to the Trustee of the assets
included in REMIC I, and in exchange therefor, at the direction of
the
Depositor, the REMIC I Regular Interests have been issued hereunder
and the
Trustee has executed, authenticated and delivered to or upon the
order of the
Depositor, the Class R-I Certificates in authorized denominations.
The interests
evidenced by the Class R-I Certificates, together with the REMIC I
Regular
Interests, constitute the entire beneficial ownership of REMIC I.
The rights of
the Class R-I Certificateholders and REMIC II to receive
distributions from the
proceeds of REMIC I in respect of the Class R-I Certificates and
the REMIC I
Regular Interests, respectively, and all ownership interests of the
Class R-I
Certificateholders and REMIC II in and to such distributions, shall
be as set
forth in this Agreement.
SECTION 2.10 Conveyance of REMIC I Regular Interests; Acceptance
of
REMIC II by the Trustee.
The Depositor, as of the Closing Date, and concurrently with
the
execution and delivery hereof, does hereby assign without recourse
all the
right, title and interest of the Depositor in and to the REMIC I
Regular
Interests to the Trustee for the benefit of the Holders of the
REMIC II
Certificates. The Trustee acknowledges the assignment to it of the
REMIC I
Regular Interests and declares that it holds and will hold the same
in trust for
the exclusive use and benefit of all present and future Holders of
the REMIC II
Certificates.
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SECTION 2.11 Issuance of the REMIC II Certificates.
Concurrently with the assignment to the Trustee of the REMIC I
Regular Interests, and in exchange therefor, at the direction of
the Depositor,
the Trustee has executed, authenticated and delivered to or upon
the order of
the Depositor, the REMIC II Certificates in authorized
denominations evidencing
the entire beneficial ownership of REMIC II. The rights of the
respective
Classes of Holders of the REMIC II Certificates to receive
distributions from
the proceeds of REMIC II in respect of their REMIC II Certificates,
and all
ownership interests of the respective Classes of Holders of the
REMIC II
Certificates in and to such distributions, shall be as set forth in
this
Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01 Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall
service and administer the Mortgage Loans that it is obligated to
service and
administer pursuant to this Agreement on behalf of the Trustee, and
in the best
interests and for the benefit of the Certificateholders, in
accordance with any
and all applicable laws and the terms of this Agreement, the
Insurance Policies
and the respective Mortgage Loans and, to the extent consistent
with the
foregoing, in accordance with the Servicing Standard. Without
limiting the
foregoing, and subject to Section 3.21, (i) the Master Servicer
shall service
and administer all Mortgage Loans as to which no Servicing Transfer
Event has
occurred and all Corrected Mortgage Loans, and (ii) the Special
Servicer shall
service and administer (x) each Mortgage Loan (other than a
Corrected Mortgage
Loan) as to which a Servicing Transfer Event has occurred, and (y)
each REO
Property; provided, however, that the Master Servicer shall
continue to collect
information and prepare all reports to the Trustee required
hereunder with
respect to any Specially Serviced Mortgage Loans and REO Properties
(and the
related REO Loans), and further to render such incidental services
with respect
to any Specially Serviced Mortgage Loans and REO Properties as are
specifically
provided for herein.
(b) Subject to Section 3.01(a), the Master 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 Master Servicer and the
Special
Servicer, in its own name, with respect to each of the Mortgage
Loans it is
obligated to service hereunder, is hereby authorized and empowered
by the
Trustee to execute and deliver, on behalf of the Certificateholders
and the
Trustee or any of them: (i) any and all financing statements,
continuation
statements and other documents or instruments necessary to maintain
the lien
created by any Mortgage or other security document in the related
Mortgage File
on the related Mortgaged Property and related collateral; (ii) in
accordance
with the Servicing Standard and subject to Sections 3.08 and 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, at the written request of a Servicing Officer of the
Master
Servicer or the Special Servicer, furnish, or cause to be so
furnished, to the
Master Servicer and the Special Servicer, as the case may be, any
limited powers
of attorney and other documents necessary or appropriate to enable
them to carry
out their servicing and administrative duties hereunder; provided,
however, that
the Trustee shall not be held liable for any misuse of any such
power of
attorney by the Master Servicer or the Special Servicer.
(c) The relationship of each of the Master Servicer and Special
Servicer to the Trustee under this Agreement is intended by the
parties to be
that of an independent contractor and not that of a joint venturer,
partner or
agent.
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(d) In the event that any two or more Mortgage Loans are
cross-collateralized with each other, the Master Servicer or
Special Servicer,
as applicable, in accordance with the terms of this Agreement,
shall service and
administer such Mortgage Loans as a single Mortgage Loan as and
when it deems
necessary and appropriate, consistent with the Servicing Standard.
If any
Cross-Collateralized Mortgage Loan becomes a Specially Serviced
Mortgage Loan,
then each other Mortgage Loan that is cross-collateralized with it
shall also
become a Specially Serviced Mortgage Loan. Similarly, no
Cross-Collateralized
Mortgage Loan shall subsequently become a Corrected Mortgage Loan,
unless and
until all Servicing Transfer Events in respect of each other
Mortgage Loan that
is cross-collateralized with it, are remediated or otherwise
addressed as
contemplated in the definition of "Specially Serviced Mortgage
Loan".
SECTION 3.02
Collection of Mortgage Loan Payments.
Each of the Master 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, to the extent such procedures shall be consistent with this
Agreement
(including without limitation, the Servicing Standard), follow such
collection
procedures as it would follow were it the owner of such Mortgage
Loans;
provided, however, that nothing herein contained shall be construed
as an
express or implied guarantee by the Master Servicer or the Special
Servicer of
the collectability of the Mortgage Loans; and, provided, further,
that neither
the Master Servicer nor the Special Servicer shall, with respect to
any
Hyper-Amortization Loan after its Anticipated Repayment Date, take
any
enforcement action with respect to the payment of Additional
Interest (other
than the making of requests for its collection), unless (i) the
taking of an
enforcement action with respect to the payment of other amounts due
under such
Mortgage Loan is, in the good faith and reasonable judgment of the
Special
Servicer, and without regard to such Additional Interest, also
necessary,
appropriate and consistent with the Servicing Standard or (ii) all
other amounts
due under such Mortgage Loan have been paid, the payment of such
Additional
Interest has not been forgiven in accordance with Section 3.20 and,
in the good
faith and reasonable judgment of the Special Servicer, the
Liquidation Proceeds
expected to be recovered in connection with such enforcement action
will cover
the anticipated costs of such enforcement action and, if
applicable, any
associated Advance Interest. Consistent with the foregoing, the
Master Servicer
or the Special Servicer each may waive any Default Charges in
connection with
any specific delinquent payment on a Mortgage Loan it is obligated
to service
hereunder.
_________ (_____) days prior to the maturity date of each
Balloon
Mortgage Loan, the Master Servicer shall send a notice to the
related Mortgagor
of such maturity date (with a copy to be sent to the Special
Servicer) and shall
request confirmation that the Balloon Payment will be paid by such
date.
SECTION 3.03 Collection of Taxes, Assessments and Similar
Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all the Mortgage Loans,
establish and maintain one or more accounts (the "Servicing
Accounts"), into
which all Escrow Payments
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shall be deposited and retained. Subject to any terms of the
related Mortgage
Loan documents that specify the nature of the account in which
Escrow Payments
shall be held, each Servicing Account shall be an Eligible Account.
Withdrawals
of amounts so collected in respect of any Mortgage Loan (and
interest earned
thereon) from a Servicing Account may be made only: (i) to effect
payment of
real estate taxes, assessments, insurance premiums, [ground (if
applicable)] and
comparable items in respect of the related Mortgaged Property; (ii)
to reimburse
the Master Servicer, the Special Servicer or the Trustee, as
applicable, for any
unreimbursed Servicing Advances made thereby to cover any of the
items described
in the immediately preceding clause (i); (iii) to refund to the
related
Mortgagor any sums as may be determined to be overages; (iv) to pay
interest, if
required and as described below, to the related Mortgagor on
balances in the
Servicing Account (or, if and to the extent not payable to the
related
Mortgagor, to pay such interest to the Master Servicer); or (v) to
clear and
terminate the Servicing Account at the termination of this
Agreement in
accordance with Section 9.01. The Master Servicer shall pay or
cause to be paid
to the Mortgagors interest, if any, earned on the investment of
funds in
Servicing Accounts maintained thereby, if required by law or the
terms of the
related Mortgage Loan. If the Master Servicer shall deposit in a
Servicing
Account any amount not required to be deposited therein, it may at
any time
withdraw such amount from such Servicing Account, any provision
herein to the
contrary notwithstanding. The Special Servicer shall promptly
deliver all Escrow
Payments received by it to the Master Servicer for deposit in the
applicable
Servicing Account.
(b) The Master Servicer shall (with the cooperation of the
Special
Servicer in the case of Specially Serviced Mortgage Loans), (i)
maintain
accurate records with respect to each Mortgaged Property reflecting
the status
of real estate taxes, assessments and other similar items that are
or may become
a lien thereon and the status of insurance premiums [and any ground
rents]
payable in respect thereof and (ii) use reasonable efforts to
obtain, from time
to time, all bills for the payment of such items (including renewal
premiums)
and shall effect payment thereof prior to the applicable penalty or
termination
date. For purposes of effecting any such payment, the Master
Servicer shall
apply Escrow Payments as allowed under the terms of the related
Mortgage Loan
or, if such Mortgage Loan does not require the related Mortgagor to
escrow for
the payment of real estate taxes, assessments, insurance premiums,
[ground rents
(if applicable)] and similar items, each of the Master Servicer and
the Special
Servicer shall, as to those Mortgage Loans it is obligated to
service hereunder
and subject to the Servicing Standard, enforce the requirement of
the related
Mortgage that the Mortgagor make payments in respect of such items
at the time
they first become due.
(c) In accordance with the Servicing Standard, the Master
Servicer
shall, as to all the Mortgage Loans (but at the direction of the
Special
Servicer in the case of Specially Serviced Mortgage Loans), advance
with respect
to the related Mortgaged Property all such funds as are necessary
for the
purpose of effecting the payment of (i) real estate taxes,
assessments and other
similar items, (ii) ground rents or other rents (if applicable),
and (iii)
premiums on Insurance Policies, in each instance if and to the
extent Escrow
Payments (if any) collected from the related Mortgagor are
insufficient to pay
such item when due and the related Mortgagor has failed to pay such
item on a
timely basis, and provided that the particular advance would not,
if made,
constitute a Nonrecoverable Servicing Advance. All such advances
shall be
reimbursable in the first instance from related collections from
the
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Mortgagors and further as provided in Section 3.05(a). No costs
incurred by the
Master Servicer or the Special Servicer in effecting the payment of
real estate
taxes, assessments and similar items and, [if applicable, ground
rents] on or in
respect of such 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.
(d) The Master Servicer shall, as to all the Mortgage Loans,
establish and maintain, as applicable, one or more accounts (the
"Reserve
Accounts"), into which all Reserve Funds, if any, shall be
deposited and
retained. Withdrawals of amounts so deposited may be made to pay
for or
otherwise cover, or (if appropriate) to reimburse the related
Mortgagor in
connection with, the specific items for which such Reserve Funds
were escrowed,
all in accordance with the Servicing Standard and the terms of the
related
Mortgage Note, Mortgage and any agreement with the related
Mortgagor governing
such Reserve Funds. Subject to the terms of the related Mortgage
Note and
Mortgage, all Reserve Accounts shall be Eligible Accounts. The
Special Servicer
shall promptly deliver all Reserve Funds received by it to the
Master Servicer
for deposit in the applicable Reserve Account.
SECTION 3.04 Certificate Account and Distribution Account.
(a) The Master Servicer shall establish and maintain one or
more
accounts (collectively, the "Certificate Account"), held on behalf
of the
Trustee in trust for the benefit of the Certificateholders. The
Certificate
Account shall be an Eligible Account. The Master Servicer shall
deposit or cause
to be deposited in the Certificate Account, within two Business
Days of receipt
(in the case of payments by Mortgagors or other collections on or
in respect of
the Mortgage Loans) or as otherwise required hereunder, 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, interest and any other
amounts due and
payable on the Mortgage Loans on or before the Cut-off Date, which
payments
shall be delivered promptly to the Mortgage Loan Seller or its
designee, with
negotiable instruments endorsed as necessary and appropriate
without recourse):
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans;
(ii) all payments on account of interest at the respective
Mortgage
Rates on
the Mortgage Loans and all Prepayment Premiums received in
respect of
the Mortgage Loans;
(iii) to the extent allocable to the period that any Mortgage
Loan
is a
Specially Serviced Mortgage Loan, all payments on account of
Default
Charges on
such Mortgage Loan;
(iv) all Insurance Proceeds and Liquidation Proceeds (net of
all
related
Liquidation Expenses paid therefrom) received in respect of any
Mortgage
Loan (other than Liquidation Proceeds that are received in
connection
with a purchase by the Master Servicer or a Majority
Certificateholder of the Controlling Class of all of the
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Mortgage
Loans and any REO Properties in the Trust Fund and that are
required
to be deposited in the Distribution Account pursuant to Section
9.01);
(v) any amounts required to be deposited by the Master Servicer
pursuant
to Section 3.06 in connection with losses incurred with respect
to
Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer
or
the
Special Servicer pursuant to Section 3.07(b) in connection with
losses
resulting
from a deductible clause in a blanket or master single interest
policy;
(vii) any amounts required to be transferred from the REO
Account
pursuant
to Section 3.16(c); and
(viii) any amounts representing payments made by Mortgagors that
are
allocable
to cover items in respect of which Servicing Advances have been
made.
The
foregoing requirements for deposit in the Certificate Account shall
be
exclusive. Without limiting the generality of the foregoing, (A)
actual payments
from Mortgagors in the nature of Escrow Payments, and amounts that
the Master
Servicer and the Special Servicer are entitled to retain as
additional servicing
compensation pursuant to Section 3.11(b) and Section 3.11(d),
respectively, need
not be deposited by the Master Servicer in the Certificate Account
and (B) with
respect to any amount representing a sub-servicing fee (including,
without
limitation, a Primary Servicing Fee, if applicable) that otherwise
would be
required to be deposited by the Master Servicer in the Certificate
Account and
that, once so deposited, would have been permitted to be withdrawn
immediately
from the Certificate Account pursuant to Section 3.05 as part of
the payment of
the Master Servicing Fee, such amount shall be deemed to have been
deposited to
and withdrawn from the Certificate Account for such purpose to the
extent that
such sum has been retained by the Sub-Servicer pursuant to the
related
Sub-Servicing Agreement. If the Master 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. The Master Servicer shall promptly
deliver to the
Special Servicer, as additional special servicing compensation in
accordance
with Section 3.11(d), assumption fees, modification fees, Net
Default Charges,
charges for beneficiary statements or demands, charges for checks
returned for
insufficient funds and similar fees (excluding Prepayment Premiums)
received by
the Master Servicer with respect to Specially Serviced Mortgage
Loans. The
Certificate Account shall be maintained as a segregated account,
separate and
apart from trust funds created for mortgage pass-through
certificates of other
series serviced and the other accounts of the Master Servicer.
Upon
receipt of any of the amounts described in clauses (i) through
(iv)
above with respect to any Mortgage Loan, the Special Servicer shall
promptly,
but in no event later than two Business Days after receipt, remit
such amounts
to the Master Servicer for deposit into the Certificate Account in
accordance
with the second preceding paragraph, unless the Special Servicer
determines,
consistent with the Servicing Standard, that a particular item
should not be
deposited because of a restrictive endorsement or other appropriate
reason. Any
such
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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
Master 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 such check to
the order of
the Master Servicer and shall deliver promptly, but in no event
later than two
Business Days after receipt, any such check to the Master Servicer
by overnight
courier, unless the Special Servicer determines, consistent with
the Servicing
Standard, that a particular item cannot be so endorsed and
delivered because of
a restrictive endorsement or other appropriate reason.
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in
trust for the
benefit of the Certificateholders. The Distribution Account shall
be an Eligible
Account. On each Master Servicer Remittance Date, the Master
Servicer shall
deliver to the Trustee, for deposit in the Distribution Account, an
aggregate
amount of immediately available funds equal to the Master Servicer
Remittance
Amount for such Master Servicer Remittance Date. If, at 1:00 p.m.,
New York City
time, on any Master Servicer Remittance Date, the Trustee has not
received the
Master Servicer Remittance Amount, the Trustee shall provide notice
to the
Master Servicer in the same manner as required by Section 4.03(a)
hereof with
respect to P&I Advances.
In
addition, the Master Servicer shall, as and when required
hereunder,
deliver to the Trustee for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer
in
accordance
with Section 4.03(a);
(ii) any amounts required to be deposited by the Master
Servicer
pursuant
to Section 3.19(e) in connection with Prepayment Interest
Shortfalls; and
(iii) any Liquidation Proceeds paid by the Master Servicer or a
Majority
Certificateholder of the Controlling Class in connection with
the
purchase
of all of the Mortgage Loans and any REO Properties pursuant to
Section
9.01, exclusive of the portion of such Liquidation Proceeds
required
to be deposited in the Certificate Account pursuant to Section
9.01.
The
Trustee shall, upon receipt, deposit in the Distribution Account
any
and all amounts received or advanced by the Trustee that are
required by the
terms of this Agreement to be deposited therein.
(c) Funds in the Certificate Account may be invested in
Permitted
Investments in accordance with the provisions of Section 3.06. The
Master
Servicer shall give notice to the other parties hereto 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. The Trustee shall
give notice
to the other parties hereto of the location of the Distribution
Account as of
the Closing Date and of the new location of the Distribution
Account prior to
any change thereof.
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SECTION 3.05 Permitted Withdrawals From the Certificate Account
and
the Distribution Account.
(a) The Master Servicer may, from time to time, make
withdrawals
from the Certificate Account for any of the following purposes (the
order set
forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Trustee for deposit in the Distribution
Account
the Master
Servicer Remittance Amount for and, to the extent permitted or
required
by Section 4.03(a), any P&I Advances to be made on each
Master
Servicer
Remittance Date;
(ii) to reimburse the Trustee or the Master Servicer, as
applicable,
in that
order, for unreimbursed P&I Advances made thereby in respect
of
any
Mortgage Loan or REO Loan, the Trustee's and the Master
Servicer's
respective
rights to reimbursement pursuant to this clause (ii) with
respect to
any P&I Advance being payable from, and limited to, amounts
that
represent Late Collections of interest and principal (net of
related
Master
Servicing Fees, Workout Fees and/or Liquidation Fees payable
therefrom)
received in respect of the particular Mortgage Loan or REO Loan
as to
which such P&I Advance was made;
(iii) to pay to the Master Servicer earned and unpaid Master
Servicing
Fees in respect of each Mortgage Loan and REO Loan, the Master
Servicer's
right to payment pursuant to this clause (iii) with respect to
any
Mortgage Loan or REO Loan being payable from, and limited to,
amounts
received
on or in respect of such Mortgage Loan (whether in the form of
payments,
Liquidation Proceeds or Insurance Proceeds) or such REO Loan
(whether
in the form of REO Revenues, Liquidation Proceeds or Insurance
Proceeds)
that are allocable as a recovery of interest thereon;
(iv) to pay to the Special Servicer, out of general collections
on
the
Mortgage Loans and any REO Properties, earned and unpaid
Special
Servicing
Fees in respect of each Specially Serviced Mortgage Loan and
REO
Loan;
(v) to pay to the Special Servicer earned and unpaid Workout
Fees
and
Liquidation Fees to which it is entitled pursuant to, and from
the
sources
contemplated by Section 3.11(c);
(vi) to reimburse the Trustee, the Special Servicer or the
Master
Servicer,
as applicable, in that order, for any unreimbursed Servicing
Advances
made thereby with respect to any Mortgage Loan or REO Property,
the
Trustee's, the Special Servicer's and the Master Servicer's
respective
rights to
reimbursement pursuant to this clause (vi) with respect to any
Servicing
Advance being payable from, and limited to, (A) payments made
by
the
related Mortgagor that are allocable to cover the item in respect
of
which such
Servicing Advance was made, and (B) Liquidation Proceeds (net
of
Liquidation Fees payable therefrom), Insurance Proceeds and, if
applicable, REO
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<PAGE>
Revenues
received in respect of the particular Mortgage Loan or REO
Property
as to which such Servicing Advance was made;
(vii) to reimburse the Trustee, the Special Servicer or the
Master
Servicer,
as applicable, in that order, out of general collections on the
Mortgage
Loans and any REO Properties, for any unreimbursed Advances
made
thereby
with respect to any Mortgage Loan, REO Loan or REO Property
that
have been
determined to be Nonrecoverable Advances;
(viii) to pay the Trustee, the Special Servicer or the Master
Servicer,
as applicable, in that order, any Advance Interest due and
owing
thereto,
the Trustee's, the Special Servicer's and the Master Servicer's
respective
rights to payment pursuant to this clause (viii) being payable
from, and
limited to, Default Charges collected in respect of the
Mortgage
Loan or
REO Loan as to which the related Advances were made (but only
to
the extent
allocable to the period when such Mortgage Loan was a Specially
Serviced
Mortgage Loan or an REO Loan);
(ix) at or following such time as the Master Servicer
reimburses
itself,
the Special Servicer or the Trustee, as applicable, for any
unreimbursed Advance pursuant to clause (ii), (vi) or (vii) above
or
Section
3.03, and insofar as payment has not already been made pursuant
to
clause
(viii) above, to pay the Trustee, the Special Servicer or the
Master
Servicer, as the case may be, and in that order, out of general
collections on the Mortgage Loans and any REO Properties, any
related
Advance
Interest accrued and payable on such Advance;
(x) to pay the Master Servicer, as additional servicing
compensation
in
accordance with Sections 3.06(b) and 3.11(b), any Net
Investment
Earnings
in respect of amounts held in the Certificate Account for any
Collection
Period;
(xi) to pay the Master Servicer, as additional servicing
compensation in accordance with Section 3.11(b), any Prepayment
Interest
Excesses
and, to the extent not allocable to the period that any
Mortgage
Loan is a
Specially Serviced Mortgage Loan or REO Loan, any Default
Charges
collected on the Mortgage Loans, and to pay the Special
Servicer,
as
additional servicing compensation in accordance with Section
3.11(d),
any Net
Default Charges collected on any Mortgage Loan to the extent
allocable
to the period that such Mortgage Loan is a Specially Serviced
Mortgage
Loan or REO Loan;
(xii) to reimburse, out of general collections on the Mortgage
Loans
and any
REO Properties, the Master Servicer, the Special Servicer, the
REMIC
Administrator, the Depositor, or any of their respective
directors,
officers,
employees and agents any amounts reimbursable to any such
Person
pursuant
to Section 6.03, or to pay directly to any third party any
amount
which if
paid by any such Person would be reimbursable thereto pursuant
to
Section
6.03;
(xiii) to pay, out of general collections on the Mortgage Loans
and
any REO
Properties, for (A) the reasonable costs of the advice of
counsel
contemplated by
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<PAGE>
Section
3.17(a), (B) the reasonable costs of the Opinions of Counsel
contemplated by Sections 3.09(b)(ii) and 3.16
